Summary

On 25 January 2011, a motion for a resolution on “Serious
setbacks in the fields of the rule of law and human rights in Hungary”
was tabled which contained a request to open a monitoring procedure
in respect of Hungary. In its draft resolution on this subject,
the Monitoring Committee outlines a number of worrisome developments with
regard to the constitutional reform process in Hungary that raise
serious questions with regard to the authorities’ compliance with
the fundamental principles of democracy, the protection of human
rights and respect for the rule of law.

The erosion of democratic checks and balances as a result
of the new constitutional framework in Hungary raises serious concerns.
This new framework has excessively concentrated powers, increased
discretion and reduced the accountability and legal oversight of
numerous government institutions and regulatory bodies in Hungary.
In addition, the committee expresses serious concerns about the
curtailing of the powers and competences of the Constitutional Court
and the willingness of the authorities to use the two-thirds majority
in the parliament to circumvent Constitutional Court decisions.
This also raises questions with regard to the respect for the principle
of the rule of law.

When acceding to the Council of Europe, Hungary voluntarily
committed itself to upholding the highest possible standards in
relation to the functioning of democratic institutions, the protection
of human rights and respect for the rule of law. Regrettably, the
developments outlined in the report raise serious and sustained
concerns about the extent to which the country is still complying
with these obligations. The Monitoring Committee therefore recommends
opening a monitoring procedure in respect of Hungary until such
time as the concerns mentioned, inter
alia, in the draft resolution and accompanying report,
have been satisfactorily addressed.

A. Draft
resolution

(open)

1. The Parliamentary Assembly welcomes the report on
the request to open a monitoring procedure in respect of Hungary,
which was prepared following the motion for a resolution on “Serious
setbacks in the fields of the rule of law and human rights in Hungary”
(Doc. 12490). It takes note of, and supports the conclusions and
recommendations of the European Commission for Democracy through
Law (Venice Commission) on the Fundamental Law of Hungary and several
Cardinal Acts, which were produced, inter
alia, at the request of the Assembly’s Monitoring Committee.

2. The constitution and related organic laws are the basis for
the legal and democratic functioning of a country. They provide
the basic democratic rules and the framework for the protection
of the human rights of its citizens and the respect for the rule
of law. In the view of the Assembly, a constitutional framework
should therefore be stable and based on a wide social acceptance
and large political consensus.

3. The Assembly regrets that the Hungarian Constitution and related
cardinal laws were adopted in a hasty and opaque manner that disrespected
proper democratic procedure and which, as a result, are not based
on a consensus between the widest possible range of political forces
in Hungarian society. This undermines the democratic legitimacy
of the new Hungarian constitutional framework.

4. The Assembly considers that the excessive use of, and wide
range of subjects regulated by, cardinal laws and provisions – which
need a two-thirds majority to be changed – can be harmful to democratic principles.
For the Assembly, this might be interpreted as an attempt by the
current ruling majority to cement its values and policy preferences
into the constitutional framework, with the purpose of controlling
the direction of national policy far beyond the mandate that it
has received from the Hungarian voters. The sheer number of institutions
and regulatory bodies that have been set up or changed by the authorities
underscores this intention. The control of the national policy and
regulatory framework far beyond the current mandate of the authorities
raises important questions about the compatibility of the new constitutional
framework with the basic tenets of Article 3 of the Protocol to
the European Convention on Human Rights (ETS No. 9 and ETS No. 5).

5. A constitutional framework should be based on broadly accepted
values in society. The Assembly therefore regrets that the newly
adopted constitutional framework includes several declarations and
provisions that codify norms and values that are contentious and
divisive in Hungarian society. This affects the democratic legitimacy
and social acceptability of the constitutional framework, which
is a matter for concern.

6. The Assembly is deeply concerned about the erosion of democratic
checks and balances as a result of the new constitutional framework
in Hungary. This new framework has excessively concentrated powers, increased
discretion and reduced accountability and legal oversight of numerous
government institutions and regulatory bodies in Hungary.

7. In the opinion of the Assembly, the curtailing of the powers
and competences of the Constitutional Court – an important counter-balancing
and stabilising institution in the Hungarian political system –
is further evidence of the erosion of the system of checks and balances
in Hungary. In this context, the fact that the ruling coalition
has used its two-thirds majority in the parliament to circumvent
Constitutional Court decisions and to reintroduce provisions in
the constitution that were annulled by the Constitutional Court,
has raised concerns.

8. Between May 2010 and the entry into force of the new Fundamental
Law, on 1 January 2012, the previous constitution was amended 12
times. Since then, the new Fundamental Law has already been amended
four times, the last time considerably. The constant changing of
the constitution for narrow party political interests undermines
the required stability of the constitutional framework. In addition,
the Assembly wishes to underline that the main justification for
a qualified two-thirds majority in constitutional matters is to protect
the constitutional framework from frivolous changes by a ruling
party and to ensure that the constitution is based on an as wide
a consensus as possible between all political forces on the legal
and democratic foundations of the State. The possession of a two-thirds
majority does not relieve a ruling party or coalition from the obligation
to seek consensus and to respect and accommodate minority views
and interests. The will of the ruling coalition in Hungary to use
its unique two-thirds majority to push through reforms is in contravention
of these democratic principles.

9. The Assembly regrets the recent adoption of the so-called
fourth amendment to the constitution against the recommendations
of many national and international experts and against the explicit
advice of Hungary’s international partners. The fact that this fourth
amendment knowingly contains a number of provisions that had previously
been declared unconstitutional by the Constitutional Court of Hungary
and/or flagged as being at variance with European principles and
norms by the Venice Commission, is unacceptable and raises questions about
the willingness of the current authorities to abide by European
standards and norms.

10. The assessments of the constitution and several cardinal laws
by the Venice Commission and Council of Europe experts raise a number
of questions with regard to the compatibility of certain provisions
with European norms and standards, including with the case law of
the European Court of Human Rights. The Assembly urges the Hungarian
authorities to reduce the number of areas that are regulated by
Cardinal Acts and provisions and to take full advantage of the recommendations
of the Venice Commission.

11. In addition, the Assembly calls upon the Hungarian authorities,
with regard to:

11.1. the Act on
Freedom of Religion and the Status of Churches, to:

11.1.1. remove the right to decide to
recognise a religious denomination as a church from the competencies
of the parliament, which is inherently a political body, and to
ensure that such decisions are made by an impartial administrative
authority on the basis of clear legal criteria;

11.1.2. establish clear legal criteria for the recognition of
a church that are fully in line with international norms, including
the case law of the European Court of Human Rights;

11.1.3. provide for the possibility to appeal any decision to
grant, or reject, a request to be recognised as a church, before
a normal court of law, both on substantial as well as on procedural grounds;

11.2. the Act on Elections of Members of the Parliament, to:

11.2.1. ensure that the election districts
are drawn up by an independent authority on the basis of clear legal
criteria;

11.2.2. ensure that the district boundaries themselves are not
defined by law, especially not by a cardinal law. In addition, the
Assembly recommends that the authorities seek a wide consensus between
all political parties on the so-called compensation formula and
to allow minority voters up until election day the choice of voting
for a regular party or a minority list;

11.3. the Act on the Constitutional Court, to:

11.3.1. remove the limitation of the
jurisdiction of the Constitutional Court on economic matters;

11.3.2. remove from the constitution the prohibition of the Constitutional
Court to refer back to its case law from before 1 January 2012;

11.3.3. implement a mandatory cooling-down period between political
activities and being elected to the Constitutional Court;

11.4. the Acts on the Judiciary, notwithstanding the improvements
made to the relevant laws in co-operation with the Secretary General
of the Council of Europe, to:

11.4.1. remove
the possibility to transfer cases from the powers of the Chairperson
of the National Judicial Office;

11.4.2. remove the possibility in the law for the Chairperson
of the National Judicial Office to annul the outcome of a competition
for the appointment of a judge;

11.4.3. to ensure that, by law, all decisions of the Chairperson
of the National Judicial Office can be appealed before a court of
law, both on substantial and on procedural grounds;

11.5. media legislation, to:

11.5.1. abolish
registration requirements for print and online media;

11.5.2. separate, functionally and legally, the Media Council
from the Media Authority;

11.5.3. ensure that, by law, all decisions of the Media Council
or Media Authority can be appealed before a court of law, both on
substantial and on procedural grounds.

12. The Assembly considers that each of the concerns outlined
above is inherently serious in terms of democracy, the rule of law
and respect for human rights. Taken separately, they would already
warrant close scrutiny by the Assembly. In the present case, however,
what is striking is the sheer accumulation of reforms that aim to
establish political control of most key institutions while in parallel
weakening the system of checks and balances.

13. When acceding to the Council of Europe, Hungary voluntarily
committed itself to upholding the highest possible standards in
relation to the functioning of democratic institutions, the protection
of human rights and respect for the rule of law. Regrettably, the
above-mentioned developments have raised serious and sustained concerns
about the extent to which the country is still complying with these
obligations. The Assembly therefore decides to open a monitoring
procedure in respect of Hungary until such time as the concerns
mentioned in, inter alia,
this resolution and the accompanying report have been satisfactorily
addressed.

1. Procedure

1. On 25 January 2011, Ms Marietta de Pourbaix-Lundin
(Sweden, EPP/CD) and others tabled, through a motion for a resolution,
an application to open a monitoring procedure in respect of Hungary.
In this motion, the
authors argue that the future constitutional framework and the new
media laws are undermining the rule of law and functioning of democratic
institutions in Hungary to such an extent that the opening of a
monitoring procedure by the Parliamentary Assembly is warranted.
The need for opening a monitoring procedure was, in the view of
the authors of the motion, also underscored by the reduced powers
of the Hungarian Constitutional Court to scrutinise the new legislation
and decisions by the government, as well as reports that civil servants were
being dismissed as a result of their political views.

2. On 24 January 2011, the Bureau decided to hold a current affairs
debate on the functioning of democracy in Hungary, which took place
on 26 January 2011. During this debate, several members reiterated their
concern that the new constitutional framework was being implemented
without the required consultations and consensus and that it was
reducing – and even abolishing – the necessary checks and balances
between the different branches of power in the country.

3. According to Resolution
1115 (1997), as amended by Resolution
1431 (2005), an application to initiate a monitoring procedure –
which may originate, inter alia,
from a motion for a resolution or recommendation tabled by not less
than 20 members of the Assembly, representing at least six national
delegations and two political groups – is to be considered by the
Monitoring Committee which, after the appointment of two co-rapporteurs
and after carrying out the necessary investigations, will prepare
a written opinion for the Bureau. This opinion should contain
a draft decision to open, or not, a monitoring procedure. If both
the Monitoring Committee and the Bureau of the Assembly agree to
open the monitoring procedure, or if they take divergent positions,
the written opinion adopted by the Monitoring Committee shall be
transformed into a report containing a draft resolution, which will
be included for debate on the agenda of the next Assembly part-session.
If both the Monitoring Committee and the Bureau of the Assembly
agree that there is no need to open a monitoring procedure, such
decision shall be recorded in the Progress Report of the Bureau
and the Standing Committee, subject to confirmation by a vote of
the Assembly during the discussion of the Progress Report.

4. Subsequently, on 25 March 2011, the Monitoring Committee appointed
Ms Kerstin Lundgren (Sweden, ALDE) and Ms Jana Fischerová (Czech
Republic, EDG) as co-rapporteurs for the opinion on the request
for the opening of a monitoring procedure in respect of Hungary.
In addition, the committee decided to ask for the opinion of the
European Commission for Democracy through Law (Venice Commission)
on the new constitution that, at that moment, was being debated
in final reading in the Hungarian Parliament.

5. In total, three fact-finding visits were made to produce this
opinion. The first visit took place from 6 to 8 July 2011. During
that visit we met, inter alia,
with: the Speaker of the Hungarian Parliament; the President of the
Constitutional Court; the President of the Supreme Court; the Deputy
Prime Minister and Minister of Justice; the Chair of the Committee
on Culture and the Media; the Deputy Chair of the ad hoc committee
to draft the new constitution; the Chair and members of the Hungarian
delegation to the Assembly; representatives of all factions in the
Hungarian Parliament; the Chair of the new Telecom and Media Authority;
the Ombudsperson for Civil Rights; the Commissioner for data protection
and freedom of information; the former Special Representative of
the Organization for Security and Co-operation in Europe (OSCE)
for the Freedom of the Media; as well as representatives of the
civil society and diplomatic community in Hungary.

6. In order to obtain additional information on the recently
adopted cardinal laws, we made a second fact-finding visit to Hungary
from 16 to 18 February 2012. During that visit, we met, inter alia, with the Speaker of the
Hungarian Parliament, the Deputy Prime Minister and Minister of
Public Administration and Justice, the Chair of the Constitutional
Court, the Chair of the Curia, the Chair of the newly created National
Judicial Office, the Chair of the Central Election Commission (CEC),
the Parliamentary Commissioner for Fundamental Rights, leaders of
the political factions in the Hungarian Parliament, the Chair and
members of the Hungarian national delegation to the Assembly, the
Chair of the national association of journalists, the Chair of the
Hungarian Bar Association, as well as representatives of civil society
and the international community in Hungary.

7. The third fact-finding visit took place from 25 to 27 February
2013. The main purpose of this visit was to clarify a number of
outstanding issues, notably with regard to the recently tabled draft
fourth amendment to the Fundamental Law, as well as to discuss our
main findings with the authorities.

8. The Fundamental Law of Hungary – the Constitution – was adopted
on 18 April 2011 and came into force on 1 January 2012. The Fundamental
Law sets the constitutional framework and main organising principles
for Hungarian society but leaves the detailed regulation and implementation
of these constitutional principles to a large number of cardinal
acts, which require a super-majority vote of two thirds of MPs present
to be adopted or amended. The drafting of these cardinal laws only
started after the adoption of the constitution. During our visit
in July 2011, it became clear that it would be impossible to assess
the new constitutional framework in Hungary – and its impact on
the democratic functioning and respect of the rule of law – before
these cardinal laws were adopted by the Hungarian Parliament. This
considerably lengthened the time frame in which we were able to
prepare our opinion for the committee. However, it also allowed
us to follow more closely the actions of several international actors,
most notably the European Commission, the European Parliament and the
OSCE Representative for the Freedom of the Media.

9. The vast majority of the cardinal laws were adopted by, and
indeed on, 31 December 2011, just before the entry into force of
the new constitution. Several cardinal laws, as well as the manner
in which they were adopted, created considerable controversy in
Hungary and abroad, and questions were raised regarding their compatibility
with international standards. In response, the Hungarian authorities
requested the opinion of the Venice Commission on the cardinal acts
on:

the legal status and remuneration
of judges and on the organisation and administration of courts;

on the right to freedom of conscience and religion and
the legal status of churches, denominations and religious communities;

on the election of members of parliament.

10. In addition, on 25 January 2012, the Monitoring Committee
decided to ask the Venice Commission for opinions on the cardinal
acts on:

freedom of information;

nationalities;

the Constitutional Court;

prosecution;

family protection.

11. The opinions on the cardinal acts on the judiciary, and
freedom of religion, as
requested by the authorities, were adopted during the plenary session
of the Venice Commission on 16 and 17 March 2012. The opinions on
the cardinal acts on elections, nationalities, the
Constitutional Court and
prosecution were adopted
during the plenary session of the Venice Commission on 15 and 16
June 2012. In addition, the opinion on the act on freedom of information
was adopted during the plenary session of the Venice Commission
on 12 and 13 October 2012.

12. Regrettably, on 20 April 2012, the Venice Commission declined
our request for an opinion on the cardinal act on family protection
on the grounds that it did not have the required expertise in the
field of private law.

13. On 31 December 2011, the Hungarian Parliament adopted the
Transitional provisions of the Fundamental Law of Hungary. In view
of the large number of new provisions with an undetermined validity
and doubts with regard to their transitional nature, on 13 March
2012, the Monitoring Committee requested an opinion of the Venice
Commission on the Transitional Provisions. On 29 March 2012, the
Venice Commission informed the committee that the transitional provisions
had been challenged before the Constitutional Court and therefore
the Venice Commission would only be able to provide an opinion after
the Constitutional Court had reached its decision. On
18 June 2012, the Hungarian Parliament adopted a first constitutional amendment
to the new Fundamental Law in order to make the Transitional Provisions
an integral part thereof. On 28 December 2012, the Constitutional
Court annulled the majority of the provisions of the Transitional Provisions.
The Venice Commission has therefore not adopted any opinion on the
Transitional Provisions.

14. On 11 May 2012 the Council of Europe Directorate General for
Human Rights and the Rule of Law published an expertise on the laws
on “The freedom of the Press and the Fundamental Rules on Media Content”
and on the “Media Services and Mass Media”, and the Secretary General
of the Council of Europe engaged in a dialogue with the Hungarian
authorities in order to address the most problematic issues in the new
legislation on the judiciary and the media.

15. We would like to emphasise the close and cordial co-operation
we enjoyed with the Hungarian Parliament and especially with the
Hungarian delegation to the Parliamentary Assembly of the Council
of Europe. We are grateful for the excellent programmes during our
visit and hospitality provided to our delegation. We would like
to thank the non-governmental organisation (NGO) community in Hungary,
and in particular the Hungarian Helsinki Committee, for their assistance.
Lastly, we would like to thank the Ambassadors of Sweden and the
Czech Republic for their hospitality.

2. Introduction

16. Against the backdrop of a financial crisis, which
necessitated a bailout by the International Monetary Fund (IMF)
in 2008, and of a very tense political climate, parliamentary elections
took place on 11 and 25 April 2010. As a result of these
elections, the joint Fidesz/KDNP list won 262 of the 386 seats in
the parliament. The incumbent Hungarian Socialist Party won
59 seats, the left-wing liberal party “Politics can be different” (LMP)
won 16 seats, and the right-wing Jobbik party won 47 seats. This
outcome gave the Fidesz/KDNP a clear constitutional majority in
the incoming parliament.

17. Since 1989 and the fall of communism, this is only the second
time that any government has had a two- thirds majority in Hungary.
The only previous occasion was between 1994 and 1998, when a Socialist/Liberal coalition
was in power.

18. Fidesz, and its leader, Viktor Orban, saw this overwhelming
majority as a “revolution through the ballot box” which gave the
coalition a clear mandate for profound change in
Hungary. New regulatory bodies were created, the management of the
judiciary underwent a major overhaul, the Ombudsman institution
was reformed, and a number of new autonomous authorities, notably
the media regulatory bodies and an Agency for data Protection and
Freedom of Information, were established. But the key element to
achieve this change was the adoption of a new constitution for Hungary,
which became the number one priority for the ruling coalition.

19. Given the magnitude of the reforms and the speed in which
they were carried out, assessing the situation in Hungary has been
a particularly challenging task, because things keep constantly
changing. We will first deal with the legislative process, and give
an overview of newly created institutions. Then we will devote a
chapter to the process of constitutional reform. We will analyse
the system of checks and balances to verify whether it has been
affected to a significant degree by the reforms and, finally, we
will flag any substantial concerns, where they exist, with regard
to a number of cardinal laws, basing ourselves on the findings of
the Venice Commission.

2.1. Legislative activity

20. From 14 May 2010, date of parliament’s constituent
sitting, to the end of 2012, the Hungarian National Assembly became
a “legislative factory”: a total of 589 laws or amendments to laws
were adopted. At mid-term, this is as much as during the four years
of the previous legislature. This is remarkable, as there are only
two ordinary sittings per year (from 1 February to 15 June, and
from 1 September to 15 December ).

21. Bills can be tabled by the President, the government, parliamentary
committees and by any individual MP. It is very rare for the President
to submit a bill to parliament. Most of the bills are submitted
by the government. As at 30 December 2012, the National Assembly
of Hungary had adopted 371 bills upon submission by the government.
According to the applicable legislation, draft
laws prepared by the government or ministries are subjected to a
mandatory consultation process. This includes publishing the draft law
on the web, allowing for the submission of any comment via e-mail.
Another form of public consultation is targeted consultation with
specific NGOs, Churches, bar association, universities, etc. No
exact deadline is set, but the law provides that drafts shall be
published in a way ensuring “adequate time” to assess them, express related
opinions thereon and analyse the opinions submitted.

22. During our first visit in July 2011, we heard a number of
complaints, substantiated by concrete examples ,
that the mandatory consultation process did not provide a real possibility
for a meaningful public debate, notably because deadlines were extremely
short. Neither the Bar Association nor the Supreme Court had been
consulted with regard to the planned reforms of the judiciary.

23. Individual members’ bills and committee bills are not covered
by the mandatory consultation process. Individual members’ bills
are thus used to speed up the legislative process. Indeed their
number soared and by mid-term had already more than doubled compared
to the 2006-2010 legislature: Government MPs tabled 260 bills (of
which 199 were adopted), opposition MPs tabled 354 bills (of which
only one was adopted). We heard
many criticisms related to the fact that a large number of bills
were submitted by individual MPs instead of the government because
this allowed for a fast-track procedure for their adoption by parliament,
thus not allowing sufficient time for debate and amendments. Another
major criticism relates to the fact that many cardinal laws, constitutional
amendments, or indeed the draft new Fundamental Law itself, were
submitted as individual members’ bills. We found it indeed questionable,
to say the least, that so many important reforms were initiated
by individual MPs.

24. All opposition parties, including Jobbik, which is in “constructive
opposition”, complained about being sidelined and ignored, with
the Fidesz/KDNP using its two-thirds majority as a steamroller to
force through its political agenda at record speed. Some important
cardinal laws, such as the one on churches, were adopted with major
changes introduced at the very last moment (so-called pre-final
vote amendments).

25. We also heard complaints about amendments to the House Rules which
were adopted in late 2011 with a two-thirds majority. Article 125.1
of the House Rules now provides that instead of a four-fifths majority of
MPs present, an exceptional urgent procedure can now be decided
by a two-thirds majority. According to the new Articles 128/A to
128/D, such a procedure may be initiated by those submitting a bill
a maximum of six times per parliamentary session (ordinary and extraordinary
sessions). If two thirds of the MPs present agree, then amendments
to the Bill can be submitted within three hours after the urgent
procedure was agreed to and the bill voted on the next day.

2.2. New institutions
and major reforms

26. To give an idea of the magnitude and scope of the
reforms carried out by the ruling coalition in just over two years,
here is a list of the institutions that were:

i. abolished or replaced:

the
Ombudsmen institution: previously it was composed of 4 Ombudsmen:
1 for civil rights, 1 for national minorities, 1 for future generations
(environment) and 1 for data protection and freedom of information;

the National Council of Judges and the Supreme Court;

the previous existing media bodies.

ii. newly created or recomposed:

the Budget Council (now
composed of the President of the National Bank, the Head of the
State Audit Office, and the President of the Budget Council). The
President of the State Audit Office is elected by parliament for
12 years, with a constitutional majority of two thirds of all MPs.
The President of the National Bank and of the Budget Council are
appointed by the President for six years. The new President of the
National Bank who was appointed beginning of March 2013, is the
former Minister of Economy and a member of the Fidesz parliamentary
faction since 2006. Under Article 44 of the Fundamental Law, the
adoption of the State Budget act requires the prior consent of the
Budget Council;

the National Election Committee is composed of five members
elected by parliament and five members delegated by political parties
represented in parliament. In June 2010, upon a proposal of a Fidesz
MP, the 1997 Act on election procedure was amended to the effect
that the National Election Committee is henceforth recomposed not
only before every parliamentary election (namely every four years),
but also before elections to the European Parliament and local elections.
Since the next local elections were scheduled for October 2010,
the mandate of the five members, elected in February 2010 for four
years by the previous parliament, was terminated in July 2010;

a new security force to protect the parliament was set
up in 2012. The Parliamentary Guard was given a constitutional basis
through an amendment to the Fundamental Law in March 2013;

the National Authority for data protection and freedom
of information replaces the Parliamentary Ombudsman for data protection
and freedom of information. Its President is appointed by the President
of Hungary for nine years. The
mandate of the Ombudsman for data protection was terminated upon
entry into force of the Fundamental Law, well before the end of
his term. This was the object of an infringement procedure launched
by the European Commission before the European Court of Justice,
which is still pending;

the Commissioner for Fundamental Rights, assisted by two
Deputies, one in charge of minorities and the other one in charge
of future generations. The Deputies can no longer independently lodge
complaints with the Constitutional Court. All three are elected
by parliament for a six-year mandate (renewable),
by a two-thirds majority. The previous Commissioner for Civil Rights, Mate
Szabo, who had been elected by parliament for six years in 2007,
took over as Commissioner for Fundamental Rights until the end of
his term (September 2013), but the mandate of his Deputies is to
end at the same time as his;

the Curia replaces the Supreme Court. Its President is
elected by parliament for nine years by a two-thirds majority. The
incumbent’s mandate was terminated upon entry into force of the Fundamental
Law, well before the end of his mandate (whereas all the
other judges remained in place);

the National Judicial Office takes over the management
of courts, done previously by the National Council of Judges chaired
by the President of the Supreme Court. Its President is elected
for nine years by parliament with a two-thirds majority;

the Prosecutor General’s mandate has been extended to
nine years and, according to a constitutional amendment of 16 November
2010, he
is now elected by parliament with a two-thirds majority instead
of a simple majority;

the Media Authority, the Media Council and the Media Foundation: the President of the Media authority,
who also chairs the Media Council, is appointed by the Prime Minister
for nine years whereas the Media Council (four members) is elected
by parliament by a constitutional two-thirds majority.

27. Other major reforms include a new civil code, tax and pension
reforms, a major overhaul of the judiciary and the media regulatory
bodies, new laws on the security services, on the financing of universities,
on elections, on minorities, on citizenship, on local self-government,
etc. The scope of, the speed and manner in which these reforms were
carried out, have raised concern in Hungary and internationally,
because of a suspicion that the Fidesz/KDNP coalition aims at cementing
its political choices well beyond the time-frame given to it by
the electorate. The long mandates for a number of chairs of new
institutions and the fact that all of them were appointed by the
two-thirds majority the ruling coalition holds in parliament, also
reinforces that impression.

3. Constitutional
reform

28. The idea that the Hungarian Parliament should adopt
a new constitution has been on the political agenda of the country
since the fall of the Berlin Wall. After the fall of communism,
the Constitution of Hungary was not repealed in its entirety, as
was the case in other central and eastern European countries. Instead,
the constitution in force, which dated from 1949, was amended by
the Hungarian Parliament in 1989. The preamble of this amended constitution
stated that the amended 1949 Constitution would temporarily remain
in force until a new constitution was adopted.

29. After 1989, the Constitution of Hungary was amended several
times. However, for various political reasons – and reflecting the
sensitivity of this issue – no new constitution was drafted until
2010, after the current Fidesz/KDNP coalition government came to
power. For the current ruling coalition, the adoption of a completely
new constitution was of immense symbolic value because it meant
final closure of the communist era and a return to the “historical”
constitution symbolised by the St Stephen Crown.

3.1. The amendments
to the “old constitution”

30. Between May 2010 and the entry into force of the
new Fundamental Law on 1 January 2012 (see below), the previous
constitution was amended 12 times. On three occasions it was the
government which submitted the amendments, while the remaining nine
were submitted by individual MPs from the ruling coalition. We again note
the remarkable speed of this process: as a rule, not more than two
to four weeks elapsed between the date of submission and the promulgation
of the amendments.

31. The first amendment was promulgated on 25 May 2010, the day
Victor Orban was sworn into office as the new Prime Minister: it
provides for a maximum of 200 MPs in the future and for 13 reserved
seats for minority representatives. The second amendment of 5 July
2010 changed the composition of the nomination committee for the
election of constitutional court judges and repealed article 24.5
of the constitution that required a four-fifths majority of MPs
to adopt procedural rules for the preparation of a new constitution.
The fourth amendment of 6 July 2010 added two new paragraphs to
Article 61, paving the way for the setting up of new media regulatory
bodies and making all laws related to the media cardinal laws.

32. The fifth amendment of 11 August 2010 (Bill T/579 introduced
by the government), provided a constitutional basis for introducing
the possibility of retroactive taxation. A law was then adopted
creating a retroactive 98% taxation of severance payments made to
public officials upon their dismissal. This
law was declared unconstitutional by the Constitutional Court on
28 October 2010, following which, by way of the eighth amendment
dated 19 November 2010, the powers of the Constitutional Court to
review budgetary and tax matters were severely curtailed (see below).
The government then reintroduced a bill providing for the same retroactive
taxation for five years. This was again annulled by the Constitutional
Court on 10 May 2011, as being contrary to human dignity.

33. The seventh amendment submitted by the government added a
whole new chapter constitutionalising the Financial Supervisory
Authority. The ninth constitutional amendment of 23 December 2010
creates the National Media and Info-communications Authority and
specifies that its president is to be appointed by the Prime Minister
for a nine-year term.

34. The tenth amendment of 14 June 2011 was particularly controversial
because it provided for retroactive curtailment of special pension
schemes, such as early retirement pensions, and their replacement
by social allowances that would henceforth be taxable. This led
to huge demonstrations and the lodging of over 8 000 applications
to the European Court of Human Rights.

35. Although the Fundamental Law already provided that the composition
of the Constitutional Court would be increased from 11 to 15 members
as of 1 January 2012, the tenth amendment (14 June 2011) to the
old constitution states that this increase should take effect already
on 1 September 2011 and that the new members and the President should
be elected by 31 July 2011. Five new members were thus elected
on 27 June 2011, including one sitting Fidesz MP who was one of
the proponents of the amendment. Finally the 12th amendment of 1
December 2011 provided that the president of the Curia should be
elected until 31 December 2011.

3.2. The adoption process
of the Fundamental Law

36. In June 2010, the parliament set up an ad hoc parliamentary
committee for the drafting of the new constitution. This ad hoc
committee was given until 31 December 2010 to make proposals on
the fundamental principles of a new constitution and submitted a
concept paper to parliament on 20 December 2010. However, in parallel,
members of the ruling majority were developing a draft for the new
constitution, behind closed doors. This draft was subsequently tabled
in the Hungarian Parliament on 14 March 2011. This procedure effectively sidelined
the ad hoc committee for the drafting of a constitution, whose concept
paper was relegated to a working document in the constitutional
drafting process. However,
in all fairness, we should note that part of the opposition had
already ceased to participate in the work of the ad hoc committee
in protest over the limitations to the powers of the Constitutional
Court, which were enacted by a constitutional amendment, adopted
by the ruling majority on 16 November 2010.

37. The opposition had called for a referendum to be organised
on the new constitution. This was rejected by Fidesz who countered
that the two-thirds majority gained in the elections had given it
a clear mandate to change the constitution. In order to increase
the legitimacy of the constitutional reform process a “National Consultation”
was launched in February 2011. A questionnaire was sent to all eligible
voters at the beginning of March 2011, asking them to reply to 12
questions within two weeks.

38. Hungarian citizens were not asked for their opinion on a draft
constitution. Instead they were asked for their opinion on the following
12 topics: 1) the relation between fundamental rights and obligations;
2) the restriction of public debt; 3) whether the constitution should
enhance the role of the family, public order, labour and health;
4) the need for a “family voting system” which would allow parents
to vote on behalf of their minor children; 5) whether the State
should ban the levying of taxes on expenses related to child rearing;
6) the protection of future generations; 7) the conditions of public
procurements; 8) the togetherness of Hungarians across borders;
9) the protection of natural diversity and national treasures; 10)
the protection of land and water; 11) whether life imprisonment
should be included in the Criminal Code; and 12) the obligation
to testify before a parliamentary commission.

39. It is clear from the above that this questionnaire was more
an opinion poll on various topics, many of them not related to constitutional
issues at all. In total only around 900 000 persons of the 8 million
persons to whom a questionnaire was sent replied. The results of
this questionnaire were not made public. It is to be noted that
the questionnaire was sent out to the public early March, while
the draft constitution was tabled on 14 March. It is therefore doubtful
that the results of this questionnaire could have been tabulated
in time to make any useful contribution to the constitutional drafting
process. This questionnaire can therefore under no circumstances
be seen as a proper civil consultation let alone as a valid alternative
to a referendum.

40. The new constitution was adopted in the Hungarian Parliament
by the Fidesz/KDNP coalition on
18 April 2011. It was signed into force by the President of Hungary
on 25 April 2011, less than one and a half months after it was introduced
in parliament. The lack of transparency in the drafting process
and the short time frame for the adoption of the new constitution
were criticised by the Venice Commission as
well as by Hungarian civil society. We strongly concur with this
negative assessment of the adoption process. A constitution sets
the rules of the game for the democratic and legal functioning of
a country and creates the framework for the protection of the rights
of its citizens. European democratic tradition therefore dictates
that the adoption of a constitution be based on an as wide a consensus
as possible and only after a proper in-depth consultation of society.
The opaque drafting process, the lack of proper parliamentary debate
and adequate consultation of Hungarian society, as well as the lack
of a wide consensus on the text and indeed overall direction of
the new constitution, undermine the democratic legitimacy of the
new Fundamental Law of Hungary.

41. We should like to refer to the extensive analysis of the new
constitution contained in the opinion of the Venice Commission that
was prepared upon the request of the Monitoring Committee. This
opinion lists several positive aspects of the new constitution,
but also a number of serious concerns and shortcomings. We will
not reproduce its findings in extenso but
restrict ourselves to highlighting some of its main findings that
are of particular relevance for this opinion.

42. The adoption of the new constitution stirred a lot of controversy,
including among Hungary’s neighbours. To a large extent, this controversy
was related to the – in many ways unique and outspoken – preamble
to the constitution. This preamble contains a number of explicit
and sometimes contentious political declarations and statements.
A number of these declarations are based on moral and ethical norms
that are debatable and not shared by everyone in society. However,
we do not wish to be drawn into a debate on the merit of the statements
in the preamble, or the moral and ethical norms that underpin them.
That falls outside the scope of this opinion.

43. The authorities have emphasised on several occasions that
the preamble is primarily a set of political declarations that will
in no way reduce the established protection of individual human
rights granted under the European Convention on Human Rights (ETS
No. 5, “the Convention”) and other international human rights instruments
that Hungary is Party to. However, like the Venice Commission, we
would like to stress that a constitution should avoid attempting
to codify values and norms that are controversial and about which justifiably
different opinions and concepts exist within society. This is especially
important in the light of the provision in the Constitution that requires
that the entire constitution be interpreted in the light of the declarations
made in the preamble. This could cause problems in the future if
the provisions of the constitution or cardinal acts are interpreted
in a very narrow manner on the basis of such politically charged
definitions.

44. According to Article D of the constitution, “Hungary shall
bear responsibility for the fate of Hungarians living beyond its
borders”. This provision has caused, understandably, some consternation
among Hungary’s neighbours and other countries with a sizeable ethnic
Hungarian minority. The authorities have formally stated that this
article should be interpreted as an obligation to support and assist
Hungarian ethnic minorities abroad – in co-operation with the home
State – in preserving their identity and culture. They stressed
that this provision does not provide – and cannot be interpreted
as, providing – a basis for extra-territorial decision-making by
the Hungarian authorities. Any other interpretation by the
Hungarian authorities would be at odds with the country’s international
obligations and, in our view, unacceptable from a Council of Europe
perspective.

45. As indicated above, the adoption process of the new constitution
was controversial and characterised by accusations that the authorities
were sidestepping common democratic procedure and using their constitutional
majority to force their political views upon the political minority.
The controversial manner in which the constitution was adopted was
repeated during the adoption of the Cardinal Acts and indeed raises questions
about the authorities’ commitment to democratic procedures and willingness
to respect checks and balances.

46. There are two main justifications for a two-thirds majority
to adopt or change the constitutional framework. Firstly, to protect
it from frivolous changes by a ruling party for narrow partisan
self-interest and, secondly, to ensure an as wide a consensus as
possible between all political forces over the legal and democratic
foundations of the State. The fact that the current ruling coalition
in Hungary has a two-thirds majority in the parliament does not
relieve it of its obligation to seek an as wide a consensus as possible between
all the political parties, nor from its obligation to consult the
society on the main tenets of the constitutional framework. We can only regret
that such an inclusive constitution-making process did not take place.

3.3. The excessive use
of cardinal laws and cardinal provisions

47. As mentioned, the Fundamental Law sets the normative
constitutional framework for the country. The detailed regulation
and implementation of these constitutional principles is delegated
to a large number – excessively large in the view of the Venice
Commission and other constitutional experts – of cardinal acts. These
cardinal laws are already adopted and can only be changed with a
two-thirds majority vote. This underscores the importance of the
cardinal acts when assessing the constitutional framework in Hungary.
This is especially true in the light of the vagueness of several
constitutional provisions, which lack legal clarity and allow for
the possibility of overly broad interpretation. This was one of
the main concerns noted in the Venice Commission’s opinion on the
Constitution .

48. The Fundamental Law contains around 26 subjects where reference
is made to further detailed legislation to be adopted later, the
so-called cardinal laws, which require a two-thirds majority of
all MPs present to be adopted or amended. We were told by the authorities
that cardinal laws have existed since 1989 and were in fact reduced
in number by the new Fundamental Law.

49. However, there are a number of areas made cardinal by the
Fundamental Law, which were not cardinal according to the old constitution,
such as the laws on family protection, passive right to vote, provisions
on parliament’s regular sessions, on the supervisory activities
of parliamentary committees, on autonomous regulatory bodies, on
general taxation and the pension system, on the operation of the
National Bank, on the system of financial supervision, on the Budget
Council, on State property and national assets. Furthermore, a constitutional
amendment adopted on 21 December 2012 (so-called third amendment)
has added to this list all laws relating to the use and property
of land and forests.

50. It should be noted that the previous constitution already
contained an excessively high number of references to cardinal laws:
many cardinal laws in the new Fundamental Law were also cardinal
according to the old constitution (laws on the judiciary, churches,
police, defence forces, citizenship, elections, minorities, State
audit office, local self-government, or the Parliament’s House Rules).
Around 30 cardinal laws have been adopted to date, several upon
a private member’s bill. Major structural and substantial changes
have been made, affecting almost all areas of Hungarian society.

51. In general, we are concerned that the excessive use and scope
of Cardinal Laws will undermine democratic practice in Hungary.
This is further compounded by the manner in which most of these
Cardinal Laws were prepared and adopted in the Hungarian Parliament,
as we have outlined above.

52. The lack of mandatory consultation was compounded by the heavy
workload of the parliament that resulted from the need to adopt
the large number of (partly or wholly) cardinal acts that were required
by the new Fundamental Law. On 29 November 2011, one month before
entry into force of the new Fundamental Law, only seven of the 19
Cardinal Acts had been adopted, ten were introduced and under discussion,
while two still needed to be introduced in the parliament. As a
result of this workload, cardinal acts were adopted in record time,
reportedly without much deliberation or discussion. A considerable
number of cardinal acts were adopted on 31 December 2011, several
hours before the new constitution came into force. In addition,
the ruling majority adopted a special procedure in parliament which
allowed the fast-track adoption of the cardinal acts.

53. At least five Cardinal Laws were introduced by a private member’s’
initiative, including on such sensitive issues as family protection,
religious freedom and the status of churches, as well as the election
of members of parliament and their remuneration. In our view, cardinal
laws on such sensitive and potentially controversial matters should
have been subject to a proper social consultation process. Instead,
these laws were introduced and discussed in such a short time frame
that it inhibited proper preparation by the members of parliament.

54. The extensive use of cardinal laws, with the super majority
they require to be changed, is, in our view, as well as that of
a number of other interlocutors – including the Venice Commission
– highly problematic. The excessive number and the large scope of
the laws that require a two-thirds super majority to be changed
can only be interpreted as an attempt by the current ruling majority
to cement its policy preferences in the constitution of the country.
This allows them to set the national policy far beyond the term
of the mandate that they were given by the Hungarian electorate.

55. As noted by the Venice Commission: “Cultural, religious, moral,
socio-economic and financial policies should not be cemented in
a cardinal law” but left to the normal political
process and decided upon by simple majority. Unless another party
or coalition obtains a two-thirds majority in a future election,
the cementing of these policies in the cardinal laws will give the
Fidesz coalition the de facto veto
right over the policies of the next government. The Venice Commission
rightly notes that this seems to be at odds with Article 3 of the Protocol
to the European Convention on Human Rights (ETS No. 9). Moreover,
as under these conditions negotiations to change or adapt policies
are likely to be long and protracted, the excessive use of the two-thirds majority
requirement will undermine the required flexibility needed for normal
policy making and could result in systemic political instability
and conflict.

56. In order to avoid an erosion of democratic standards and practices,
the authorities are urged to restrict the use and scope of the cardinal
laws to those areas where a strong justification for the use of
a two-thirds majority exists and to regulate cultural, religious,
moral, socio-economic and financial provisions and policies by normal
law.

3.4. The Transitional
Provisions to the Fundamental Law

57. On 31 December 2011, just one day before the entry
into force of the Fundamental Law, the Hungarian Parliament adopted
the Transitional Provisions of the Fundamental Law of Hungary, which
total 32 provisions, including a long declaration and several articles
dealing with the transition from communist dictatorship to democracy.
They contain a large number of provisions that are valid for an
undetermined period and are to all effects and purposes in fact
considered to be an integral part of the constitution. The reason
that the ruling coalition decided to integrate these new provisions
in the transitional provisions and not in constitutional amendments
– as would have been proper procedure – is, according to several
interlocutors, mostly symbolic, as amending the constitution would
undermine the notion of perfection that the authorities wished to
embellish in the Fundamental Law.

58. To our regret, we note that a number of transitional provisions
are the result of the questionable practice of the current authorities
to bypass Constitutional Court decisions by amending the constitution. On 9 November 2012,
the Transitional Provisions were amended to add a provision on prior
registration as a pre-condition of the right to vote, in order to
provide a constitutional basis for the Cardinal Law on Election Procedure,
which was adopted by parliament on 26 November 2012.

59. As the Constitutional Court invalidated most of the Transitional
Provisions on 28 December 2012, the fourth amendment tabled – again
– by individual Members’ bill on 8 February 2013 aims to include
the annulled provisions through a procedure of formal constitutional
amendments.

3.5. Amendments to the
Fundamental Law

60. Since its entry into force on 1 January 2012, the
Fundamental Law has already been amended four times. The first amendment
to the constitution was adopted on 18 June 2012, and aimed to formally
make the Transitional Provisions part of the Fundamental Law, by
re-adopting them with a two-thirds constitutional majority of all
MPs. On 19 June 2012, parliament adopted a second constitutional
amendment annulling Article 30 of the Transitional Provisions on
a possible merger of the Central Bank and the financial supervisory authority
(this had been requested by the European Commission, who had threatened
Hungary with infringement proceedings before the European Court
of Justice should the independence of the National Bank of Hungary
be curtailed in any way). A third constitutional amendment was passed
on 21 December 2012 providing that laws regulating property rights
of agricultural land and forests and integrated agricultural production
were to become cardinal laws.

61. A fourth amendment to the Fundamental Law was tabled by individual
MPs from the ruling coalition on 8 February 2013. This amendment
contains 14 articles, incorporating into the Fundamental Law the
provisions found unconstitutional by the Constitutional Court in
its judgment on the Transitional Provisions, but also adding a number
of other articles to the Fundamental Law in areas which should either
not be regulated at constitutional level at all, or raising legal
provisions to constitutional level to prevent their future examination and
possible annulment by the Constitutional Court. Other provisions
clearly aimed to provide a constitutional basis allowing parliament
to re-enact laws that were previously declared unconstitutional
by the Constitutional Court. The competences of the Constitutional
Court were also further curtailed (see section 4.2.1).

62. The frequent changing of the constitution for narrow party
preferences, especially if they are meant to bypass previous unfavourable
Constitutional Court decisions, is, in our view, at odds with the
principle of the rule of law. This view is not shared by the authorities:
they consider, firstly, that they had no other option, in order
to implement the Court’s decision, other than to incorporate all
the articles of the Transitional Provisions into the Fundamental
Law itself (so-called consolidation of the text). This is not correct,
since the Constitutional Court clearly stated that parliament could
either incorporate the said Transitional measures into the Fundamental
Law, or decide to regulate matters at another level of legal norms.

63. Secondly, they believe that as the supreme constituent power,
parliament is legitimately entitled, in a democratic society, to
adopt any constitutional amendment it pleases, even if it contradicts
or overrules a decision of the Constitutional Court. We were told
for example by the Speaker that parliament had no intention of abiding
by a decision of the Constitutional Court of 21 February 2013 annulling
a provision of the Criminal Code that prohibits the use of symbols
of totalitarian regimes, and this despite two judgments of the European Court
of Human Rights, which found a violation of Article
10 of the European Convention on Human Rights in cases concerning
the prohibition of the five-pointed red star.

64. The authorities stand on this may be formally correct, but
a two-thirds majority does not give them a free ride, and most importantly
does not allow them to bypass such an important part of the system
of checks and balances. In a democratic society, speed and volume
in law-making cannot come at the expense of quality, which only
broad consultation and proper judicial review can ensure.

65. Despite calls made by the Secretary General of the Council
of Europe to postpone the vote on the fourth amendment, in order
to give the Venice Commission an opportunity to study it, and despite
serious concerns expressed by the President of the European Commission,
several European Union member States, including Germany, and the
United States, the fourth amendment was adopted by parliament on
11 March 2013. We also consider this amendment to be very problematic,
but will flag at this stage only our major concerns, since the Hungarian
Government and the Council of Europe Secretary General have requested
an opinion of the Venice Commission. We hope this detailed opinion
will be available as soon as possible.

4. Checks and balances

66. In a democratic society, checks and balances are
provided mainly by a fair and free election system, an independent
and impartial judiciary, independent institutions providing oversight
of government actions and guaranteeing human rights, such as the
Ombudsman, free media and laws aimed at protecting human rights.

67. The Hungarian Government requested the opinion of the Venice
Commission on the acts on the judiciary, freedom of religion and
the election law. In addition, on our proposal, the Monitoring Committee
sent five more acts, on freedom of information, nationalities, the
prosecution, the constitutional court and on family protection,
to the Venice Commission for opinion. We selected these laws for
opinion because their adoption had, rightfully or not, created a
certain amount of controversy in Hungarian society or because a
number of interlocutors had flagged these acts as potentially problematic.
We therefore felt that it would be appropriate, as well as helpful,
for the Hungarian authorities and lawmakers to have an independent
and impartial assessment of these acts. Their inclusion therefore
does not automatically mean that we as rapporteurs had serious reservations
about the substance of these laws. Neither does the fact that a
cardinal act has not been sent to the Venice Commission for opinion
mean that they do not contain provisions that could be problematic in
the light of Council of Europe standards or norms.

4.1. Cardinal Act CCIII
on the Election of the Members of the Parliament of Hungary

68. The Cardinal Act CCIII on the Election of the Members
of the Parliament of Hungary was adopted by the parliament on 23
December 2011. It replaces the Cardinal Act on Election of Members
of the Parliament of 1989. This law defines the legal framework
for the elections and sets the constituency boundaries. It should
be seen in conjunction with the Act on Electoral Procedure, which
regulates the conduct of the elections itself. The Act on Electoral
Procedure was adopted on 26 November 2012. This law created quite
a controversy as it introduced active voter registration for elections.
However the legal basis for this provision was struck down by the
Constitutional Court when it annulled most of the transitional provisions.
The President of Hungary subsequently announced that active voter
registration would not be introduced before the next elections.

69. The Act on the Election of Members of Parliament was introduced
in the parliament as a private members’ bill and therefore not subject
to the social consultation procedure that would have taken place
if this bill had been proposed by the government. In addition, the
vote on this act was boycotted by the main opposition parties in
protest against the lack of consultation and transparency during
the drafting of this law.

70. The manner in which this law was introduced into the parliament
and adopted is of serious concern to us. This law defines the election
system of the country as well as the formula for the allocation
of mandates. In addition, it delimits the election constituencies.
As it is, this new act considerably changes the legal framework for
elections in Hungary. European democratic principles demand that
electoral legislation is based on a broad social consultation and
an as wide a consensus as possible between the electoral stakeholders.
The lack of transparency surrounding the drafting of this act, as
well as the lack of a wide consensus among the stakeholders about
the act and its main tenets, could undermine public trust in the
legitimacy and fairness of the election system and the parliament
that results from it.

71. On 20 January 2012, the authorities requested the opinion
of the Venice Commission on Act CCIII on the Election of Members
of Parliament of Hungary. As is its usual practice with regard to
election legislation, the Venice Commission and the Office for Democratic
Institutions and Human Rights of the OSCE (OSCE/ODIHR) prepared
a joint opinion that was adopted by the Venice Commission during
its plenary session on 15 and 16 June 2012.

72. The act on the elections of members of parliament maintained
the mixed proportional–majoritarian election system in Hungary.
However, the new act drastically reduced the number of mandates
from 386 to 199. This
reduction of MPs is in line with general public opinion in Hungary
that clearly favoured a smaller parliament. Following this reduction
of mandates, the percentage of majoritarian mandates in the parliament has
increased slightly, from 45.6% to 53.3%. In the proportional system,
there is a 5% threshold for individual parties, a 10% threshold
for a joint party list and a 15% threshold for electoral lists of
more than two parties. This threshold is excessively high and
should be reduced.

73. As was the case in the previous electoral law, a compensatory
system is used for the allocation of proportional mandates. The
rationale for such a compensatory system is to ensure that there
is a correlation between the overall number of mandates (both proportional
and majoritarian) won by a party and its overall support in the
country, as measured by the results of the proportional race.

74. The new Cardinal Act on the Election of the Members of the
Parliament of Hungary changes the compensatory allocation mechanism.
Under the previous mechanism, votes that were not used in the allocation
of proportional mandates and the votes of candidates that lost in
the majoritarian races were taken into account in the compensatory
allocation mechanism. However, under the new system, the surplus
of votes for the candidates winning a majoritarian seat
will also be taken into account in the allocation mechanism. As a
result of this new mechanism, the new election system in Hungary
is less proportional than the previous system.

75. As mentioned by the Venice Commission, there are no international
standards recommending a specific method or degree of proportionality
regarding the distribution of seats. However, democratic standards demand
that there is a positive correlation between the votes obtained
and the number of seats allocated. Moreover, as mentioned, the rationale
behind a compensatory allocation mechanism is to increase the proportionality
of the distribution of the seats and not to reduce it.

76. Given the lack of a broad consensus between the electoral
stakeholders on the electoral legislation, this new allocation mechanism
is of serious concern to us. The lack of consensus and possibility
for skewed outcomes could negatively affect the public trust in
the fairness and democratic legitimacy of the election system.

77. Before the adoption of the new Cardinal Act on the Election
of the Members of the Parliament of Hungary, the boundaries of the
electoral districts had not been changed since 1989. As a result,
the size of the majoritarian constituencies varied so excessively
that it violated the principle of the equality of the vote. This was
noted by the Constitutional Court of Hungary which stated that deviations
in the size of the election districts had created an unconstitutional
situation as it violated the principle of equal voting rights that
was enshrined in the Hungarian Constitution. Also the OSCE/ODIHR
Election Assessment mission for the 2010 elections in Hungary underlined
the excessive variation between the sizes of the constituencies,
in contradiction to international standards.

78. As a result of the reduction in the number of Members of Parliament
in the new election law, as well as in order to address the excessive
variations in the sizes of the constituencies, the boundaries of
the election districts were redrawn. In addition, the new act specifies
that the maximum deviation in the number of voters should not deviate
more than 15% between
constituencies at the national level. If the variation is more than 15%
the parliament has to amend the constituency boundaries.

79. The precise boundaries of the constituencies are defined in
the law itself and can therefore only be changed with a two-thirds
majority vote by the parliament. This means that a one-third minority
of the parliament can veto the redrawing of the constituency boundaries,
irrespective of the fact that the law stipulates that these have
to be redrawn if their sizes deviate more than 15% from each other.
As a result, the delimitation of constituency boundaries can easily
become the subject of political bartering, which in turn could compromise the
trust in the fairness of this process.

80. The fact that the constituency boundaries are drawn up by
the parliament is also highly problematic. International democratic
standards dictate that constituency boundaries should be drawn up
by an independent and impartial body, in a transparent process,
on the basis of clear and widely accepted criteria. The parliament, for
obvious reasons, has a clear interest in how the constituency boundaries
are drawn and therefore cannot be considered as an impartial and
independent body. Moreover, the new act is not clear with regard
to the actual drawing-up process and fails to set clear and impartial
criteria on the basis on which the constituency boundaries should
be drawn. As a result, the delimitation process lacks the required
transparency and clarity.

81. During our meeting with the Chair of the Central Election
Commission, in February 2012, we were informed that the CEC was
given no indication about the basis and criteria by which the constituency boundaries
were established, or by whom they were drafted. The CEC had been
neither involved nor consulted on this issue. This lack of transparency
undermines trust in the democratic process as is evident from the recurrent
allegations of gerrymandering that are made in this respect.

82. The manner in which constituency boundaries are drafted is
clearly at variance with accepted democratic norms and principles.
Echoing recommendations of the Venice Commission and the OSCE/ODIHR,
we urge the authorities to establish an independent and impartial
commission to establish and review on a periodic basis, the constituency
boundaries on the basis of clear and widely accepted legal criteria.

83. The new Cardinal Act on the Election of the Members of the
Parliament of Hungary gives Hungarian citizens abroad the right
to vote in the proportional part of the elections but not in the
majoritarian races. We welcome the fact that the Hungarian diaspora
has been given the right to vote in national elections, which increases
the universality of suffrage and follows the overall trend in
Europe in this regard. It should be noted that Hungary has a very
sizable diaspora and that
these citizens, not resident in Hungary, could have a considerable
impact on the composition of the new parliament.

84. In a welcome development, the law contains special provisions
that aim to foster the participation of national minorities in
the work of the parliament. The act allows the registration of special
minority electoral lists by minority groups for local self-governments.
The registration requirement for such a minority list is the signatures
of 1% of the registered voters of that minority, with a maximum
of 1 500 signatures. In addition, the 5% threshold is waived for
such lists.

85. Voters who are registered as belonging to a recognised minority
may vote for the majoritarian candidate in the district of residence
and for the proportional party list or for the minority list(s)
pertaining to their minority, if any are established. This choice
is made when a person registers as belonging to a minority. This
could limit the choice for the minority voters during a given election,
especially if only one list competes for the minority in question.
This in turn could potentially skew the outcome of an election.
As mentioned in the Venice Commission’s opinion on this act , it would be far better if members of
a minority could decide on election day whether they wish to vote
for the national party or for the minority lists.

4.2. The Constitutional
Court (Cardinal Act CLI of 2011 on the Constitutional Court)

86. In Hungary, since 1989, the Constitutional Court
has played a fundamental role in providing checks and balances.
The Hungarian system provides for a uni-cameral parliament and the
Constitutional Court therefore plays an important correcting role.
It is thus very worrying to observe the ruling majority’s decisions,
which clearly aim to reduce the competences of the Constitutional
Court.

4.2.1. Curtailing the
competences of the Constitutional Court

87. Cardinal Act CLI of 2011 on the Constitutional Court
was adopted in 14 November 2011. The changes to the legal framework
for the Constitutional Court were one of the more controversial
aspects of the constitutional reform in Hungary and raised concerns
about diminishing checks and balances. In this respect, it is especially
regrettable that this act was not drafted by the government, but
by a parliamentary committee, and therefore not subject to wide
public scrutiny and consultation.

88. The changes in the legal framework for the Constitutional
Court started already before the adoption of the new Fundamental
Law. Following a number of Constitutional Court decisions that annulled
provisions of a number of laws, the ruling majority adopted, in
November 2010, a controversial constitutional amendment that seriously
limited the competences of the Court. According to this amendment,
the Constitutional Court can only review the constitutionality of
Acts and decisions related to the central budget, central taxes,
stamp duties and contributions, custom duties and central requirements
related to local taxes when these violated the right to life and
human dignity, freedom of thought and religion, protection of data
or the right to Hungarian citizenship. This substantially weakens
the role of the Constitutional Court in the institutional framework
of checks and balances. In addition, the limitation of the Court’s
competences on economic criteria, to a small subset of rights guaranteed
in the constitution, weakens the human rights regime and respect
for the rule of law.

89. In the view of the Venice Commission, such restrictions of
the competences of the Constitutional Court “run counter to the
obvious aim of the constitutional legislature in the Hungarian Parliament
to enhance the protection of fundamental Rights in Hungary”.

90. The provisions that curtailed the competences of the Constitutional
Court in relation to Acts and decisions related to the central budget,
central taxes, stamp duties and contributions, custom duties and
central requirements related to local taxes, were maintained in
the Fundamental Law that was adopted on 18 April 2011. However,
the Fundamental Law limited this restriction of competences conditional
to the State debt exceeding 50% of gross domestic product (GDP). To
our surprise, the Transitional Provisions of the Fundamental Law
of Hungary state that the Constitutional Court will still not be
able to review such acts and decisions even when the budgetary situation
has improved and the State debt has been reduced to below 50% of
the GDP. This provision was subsequently struck out when the Constitutional
Court annulled most of the Transitional Provisions. It has been
reintroduced in the fourth amendment (Article 17). This is indicative
of the authorities’ wish to limit the Constitutional Court’s oversight
of its policies and decisions on a permanent basis and not only
in specific budgetary circumstances.

91. The Cardinal Act on the Constitutional Court abolished the
system of actio popularis that
had been a hallmark of the constitutional justice system of Hungary.
Under this system, each individual person, NGO, or even foreigners
had the right to request an ex post review
of the constitutionality of an act or its implementation, even without
being directly affected by it. The abolishment of actio popularis, which was one of
the stated aims of the authorities for the reform of the constitutional
justice system, has been widely criticised in Hungary and seen as
an attempt to weaken the system of checks and balances.

92. In its opinion on three legal questions arising from the process
of drafting a new Constitution in Hungary, the Venice Commission
stressed that actio popularis cannot
be regarded as a European standard and its existence is rather an
exception among Council of Europe member States. Although it acknowledges that actio popularis provides for the
broadest guarantee of a comprehensive constitutional review, it
bears the risk of completely overburdening the Constitutional Court,
as arguably was the case in Hungary.

93. In order to compensate for the abolishment of actio popularis, the system of ex post direct individual complaints
– where the individual is directly affected has been extended to
cover both legal acts and their implementation as well as court
decisions based on them.

94.Ex post reviews of legal
acts can be initiated by the government, one-fourth of the members
of parliament as well as by the Commissioner for Fundamental Rights
(Ombudsman). The
latter was added to the list of entities that can initiate an ex post review of legal acts on
the recommendation of the Venice Commission in order to compensate
for the abolition of the actio popularis system.
Civil society interlocutors initially expressed some doubts about
the possibility for the Commissioner for Fundamental Rights to effectively
initiate an ex post review
of an Act before the Constitutional Court in the absence of cases
of individuals whose rights were violated by the Act in question.

95. However, these fears turned out to be unfounded as was evident
from the number of reviews of cardinal acts by the Constitutional
Court that were requested by the Commissioner for Fundamental Rights
(over 25). This also underscores the fundamental role of this institution
in the system of checks and balances in Hungary, especially in the
situation when it would be difficult for a political force that
does not belong to the current ruling majority to obtain the required
quorum to initiate a constitutional review of a legal act. It is,
however, to be noted that the current Commissioner for Fundamental
Rights was elected in 2007 with cross-party support for a six- year
term. His mandate ends in September 2013 and it remains to be seen
whether the next one will also have the same proactive attitude
when it comes to submitting complaints to the Constitutional Court.

96. The fourth amendment to the Fundamental Law further limits
the powers of the Constitutional Court: it will only be able to
review constitutionality of the Fundamental Law or amendments thereto,
in case of violation of the procedural requirements set out in the
Fundamental Law with respect to its adoption and promulgation. Such
a review may be Initiated by the President, by
the government, a quarter of MPs, the President of the Curia, the
Prosecutor General or the Commissioner for Fundamental Rights. The
Constitutional Court must take a stand within 30 days. This means
that substantial review, even to the limited extent it had been
practised by the Constitutional Court so far, is no longer possible.

97. Article 20 of the fourth amendment repeals all the Constitutional
Court rulings delivered before the entry into force of the Fundamental
Law. Prohibiting the Constitutional Court from referring to its
case law if it pre-dates the entry into force of the Fundamental
Law (namely any case law before 1 January 2012) is clearly unacceptable.
It is also unnecessary since the Constitutional Court had already
stated in a number of decisions that it would rely
on its case law only in relation to provisions in the Fundamental
Law that were substantially the same as in the old constitution.

4.2.2. Independence of
the Constitutional Court

98. The Fundamental Law does not explicitly provide for
the independence of the Constitutional Court or for the judiciary
in general. The Venice Commission has recommended that such a provision
should be included in the Fundamental Law, but the Hungarian authorities
have not taken this up. In this context, it is also
to be regretted that the Cardinal Act CLI of 2011 does not explicitly
provide for the independence of the Constitutional Court.

99. Following constitutional amendments in 2010, the Cardinal
Act on the Constitutional Court increases the number of judges on
the court from 11 to 15. It limits judges’ mandates
to one term of 12 years. In
addition, the President of the Constitutional Court is no longer
chosen by the members of the court from among their midst but directly
elected by the parliament with a two-thirds majority. The fact that
the Cardinal Act now excludes the re-election of judges has strengthened
the independence of the judges in the Court.

100. Judges in the Constitutional Court are elected with a two-thirds
majority by the parliament. The candidates for the Constitutional
Court are appointed by a parliamentary committee that is composed
of all political factions on the basis of their numerical strength
in the parliament. Under the previous constitution, all political
factions had the same strength in the nominating committee, ensuring
that candidates could count on a large consensus among the political
forces in the country. In
the current composition of the parliament – where the ruling majority
has a constitutional majority – the qualified majority needed to
elect a Constitutional Court judge is not a sufficient guarantee
against the politicisation of the Constitutional Court. It is strongly recommended
that additional safeguards are adopted in the appointment process
to guard against possible politicisation of the court.

101. We have heard no criticism of the Constitutional Court, which
seems to date to perform its role as the guardian of the constitution
independently from the current ruling majority. Only one decision,
on the lowering of the mandatory retirement age for judges, was
taken by seven votes to seven, with the President’s vote tipping
the decision in favour of annulling this provision. Most other decisions
of the Constitutional Court were adopted by 10 votes to 5, i.e.
by a clear majority. We note, however, that the dissenting five
members very often were precisely those judges who were elected
by the current ruling majority. We heard that by March 2013 the
Constitutional Court will have eight judges (out of 15) elected
by the current two-thirds Fidesz-KDNP coalition. We can only hope
that this new composition will not affect the ability of the Court
to reach its decisions based on legal reasoning not affected by
party political preferences.

4.2.3. Overruling the
Constitutional Court

102. In the past two years, we have witnessed a very worrying
trend: many provisions of Cardinal or other Acts annulled by the
Constitutional Court were simply re-enacted by way of constitutional
amendments:

After the Court
annulled provisions which allowed for retroactive 98% taxation of
severance benefits for civil servants, it was stripped of the power
to review all issues related to taxation and budgetary matters;

After the Court, upon request of the then President of
the Supreme Court, annulled a provision of the Criminal Code allowing
the Prosecutor General to choose a court for dealing with a given
case, the same provision was re-enacted in the Transitional Provisions
to the Fundamental Law. The same power in civil cases was given
by the Transitional Provisions to the President of the National
Judicial Office. Both these transfer powers again appeared in the
draft fourth amendment (Articles 14 and 15), but the adopted version
now only constitutionalises this power for the President of the
National Judicial Office;

After the Court annulled the law on churches for procedural
reasons, the same were re-enacted in the Transitional Provisions.
The law on churches, upon a request by the Commissioner for Fundamental Rights
and 17 churches who had been refused registration, was again annulled
on substantial grounds on 27 February 2013, but the fourth amendment
continues to provide that church registration will be carried out
by parliament;

The Constitutional Court, on 16 July 2012, declared the
retroactive lowering of the mandatory retirement age for judges,
prosecutors and notaries from 70 to 62 as unconstitutional. This
had forced over 300 judges into retirement. The same provisions
were re-enacted in the Transitional Provisions;

The European Court of Justice, on 6 November 2012, also
ruled that this was a violation of European Union anti-discrimination
laws. These two rulings have not been fully implemented to date;

On 20 December 2012, upon request of the commissioner
for Fundamental Rights, the Court struck down a number of provisions
of the Family Protection Law related to inheritance rights and the
narrow definition of family: the fourth amendment again uses the
same restrictive definition of family;

On 12 November 2012, the Constitutional Court annulled
provisions of the Minor Offences Act on “permanent living in public
places” which made the fact of being homeless a criminal offence.
Article 8 of the fourth amendment provides again precisely for that
possibility;

After most of the Transitional Provisions were annulled
by the Constitutional Court on 28 December 2012, upon request of
the Fundamental Rights Commissioner, most of them were re-enacted
by way of constitutional amendments contained in the fourth amendment;

The Transitional Provisions were amended on 9 November
2012 to add an obligation of prior voter registration as a condition
for the right to vote. This was done to provide a constitutional
basis for the Law on Election Procedure which was adopted on 26
November. This law was, however, challenged before its promulgation
by the President, and the Constitutional Court struck down both
prior voter registration and a number of provisions restricting
campaign financing and publicity (decision of 7 January 2013). The
fourth amendment (Article 5) reintroduces limits to political election advertisements;

In June 2012, the Constitutional Court annulled a government
decree on student contracts (obliging students who benefited from
state subsidised higher education to work in Hungary after their
diploma). On 4 July 2012, the Higher Education Law was amended to
include the text of the annulled decree. Article 7 of the fourth
amendment now provides a constitutional basis for making financial
support to students conditional on employment or entrepreneurial
activities.

103. In any State governed by the rule of law, it is of fundamental
importance to abide by judgments of the highest court of the land
in order to guarantee legal certainty and uphold respect for fundamental
rights. The fact that the Fidesz/KDNP coalition currently enjoys
the rare privilege of a constitutional majority does not, in our
view, allow them to blatantly disregard the correcting mechanism
that the Constitutional Court provides, especially in a situation
where, like in Hungary, there is no second chamber of parliament
which could possibly act as a counter-balance and correct mistakes
made.

4.3. Cardinal Acts on
the judiciary

104. The judiciary is mostly covered by two Cardinal Acts:
Act CLXII of 2011 on the legal status and remuneration of judges
and Act CLXI of 2011 on the organisation and administration of the
courts. Given the similarity in underlying issues, we will also
discuss the Cardinal Acts on the “Prosecution Service” (CLXIII)
and on the “Status of the
Prosecutor General, Prosecutors, and other prosecution employees
and the prosecution career” (CLXIV) under this sub-heading. The
Cardinal Acts on the judiciary are one of the most controversial aspects
of the constitutional reform process in Hungary and have raised
serious concerns both domestically and abroad. This was underscored
by the start of an infringement procedure by the European Commission
on aspects of the law as well as the subsequent decision by Commissioner
Reding to challenge some provisions before the European Court of
Justice.

105. On 20 January 2012, the Minister of Foreign Affairs of Hungary
requested an opinion from the Venice Commission on several cardinal
laws including those concerning the judiciary. In addition, on 25
January 2012, the Monitoring Committee decided to ask the opinion
of the Venice Commission on, inter alia,
the cardinal laws concerning the prosecution. The opinion on the
judiciary was
adopted by the Venice Commission at its plenary meeting on 16 and
17 March 2012, while the opinion on the prosecution service was
adopted at its plenary meeting on 15 and 16 June 2012.

106. In its opinion, the Venice Commission harshly criticised the
cardinal acts on the judiciary. It noted that the cardinal acts
radically changed the justice system and introduced a system of
judicial administration that is unique in Europe. While acknowledging
the need for reform of the justice system, the opinion concluded
that this new system, in numerous aspects and especially with regard
to the independence of the judiciary, was in contradiction with
European standards and problematic from the point of view of the
right to a fair trial as provided by Article 6 of the European Convention
on Human Rights.

107. The opinion of the Venice Commission emphasised three main
areas of concern: the concentration of powers in the hands of the
President of the National Judicial Office; the early retirement
of judges and the – allegedly politically motivated – discriminatory
treatment of the President of the Supreme Court, who was the only
member of this institution who was not maintained in his functions
when the Supreme Court was renamed Curia after the adoption of the
new constitution.

4.3.1. The excessive powers
vested in the president of the National Judicial Office

108. A key area of concern was the concentration of powers
in the hands of the President of the newly created National Judicial
Office (NJO). The cardinal act vested this person, inter alia, with full powers to
appoint or dismiss judges, appoint or dismiss the court presidents,
transfer judges to other courts (with or without their consent)
and to transfer cases from one court to another. The Venice Commission considered
that these powers were largely discretionary and lacked accountability
as the cardinal act did not provide for legally established criteria
nor oblige the President of the NJO to reason his/her decisions
or allow for a judicial review of them.

109. The concerns with regard to the concentration of powers are
compounded by the fact that the cardinal act vests all these powers
in the person of the President of the NJO and not in the institution
as such. The President of the NJO is elected by the parliament with
a qualified two-thirds majority for a period of nine years. As a
result, a relatively small minority in the parliament can block
the election of a new President of the NJO, who would remain in
office until a successor has been chosen. The vice-presidents of
the NJO are appointed by the President of the NJO, who can also
initiate their removal from office. In addition, the President of
the NJO can only be removed from office by the parliament with a
two-third majority, on the basis of a motion for dismissal proposed
by the President of the Republic or the National Judicial Council
(NJC). However the
NJC is composed of judges who in many ways are dependent on the
President of the NJO who is an ex officio member
of the NJC. As a result of these provisions, the overall accountability
of the President of the NJO is clearly insufficient, which affects
the democratic legitimacy of this post.

4.3.2. The sudden lowering
of the retiring age

110. Prior to the judicial reforms, the mandatory retirement
age for judges was 70. Article
12 of the Transitional Provisions and the Cardinal Act on the Judiciary
changed this provision and lowered the mandatory retirement age
to 62. This change is remarkable in light of the fact that the government
had indicated that it wished to raise the general mandatory retirement
age from 62 to 65. The change of the mandatory retirement age resulted
in the mass lay-off of around 270 judges, many of them in senior
positions.

111. The retroactive lowering of the retirement age on questionable
grounds raised
concerns domestically and internationally. The Hungarian Ombudsman
appealed the retroactive lowering of the retirement age to the Constitutional
Court of Hungary. On 16 July 2012, the Constitutional Court ruled
that the retroactive lowering of the mandatory retirement age was
unconstitutional as it undermined the independence of the judiciary,
and ordered the government to reinstate the judges concerned.

112. On 17 January 2012, the European Commission launched an accelerated
infringement procedure against Hungary, inter
alia with regard to the lowering of the mandatory retirement
age. The Commission found that the lowering of the mandatory retirement
age for judges and prosecutors constituted age discrimination for this
category of workers. The Commission provided two reasoned opinions
to the Hungarian Government. However, the replies from the Hungarian
authorities failed to satisfy the Commission, which, on 25 April
2012, lodged a case with the European Court of Justice against the
lowering of the retirement age for Hungarian judges. On 6 November
2012, the European Court of Justice sided with the European Commission
and ruled that the lowering of the retirement age for judges amounted
to unjustified age-based discrimination outlawed by the EU Directive
on equal treatment for employment and labour (Directive 200/78/EC).

4.3.3. The dismissal of
the President of the Supreme Court

113. The Curia that was established by the Fundamental
Law is the legal successor to the Supreme Court of Hungary. The Cardinal
Act on the Judiciary therefore provides that all judges of the Supreme
Court can serve until the end of their mandate. However, an exception
was made for the President of the Supreme Court, who needed to be
re-elected. In addition, a new election criterion for the President
of the Supreme Court was adopted. According to this new criterion,
a candidate must have at least five years’ experience as a judge
in Hungary. Time served on international tribunals is not taken
into account.

114. The unequal treatment of the President of the Supreme Court
is highly questionable. These new provisions are widely seen as
being solely adopted to dismiss the sitting President of the Supreme
Court, Mr Baka, who in the past had been critical of the government’s
policies of judicial reform and who had successfully challenged
a number of government decisions and laws before the Constitutional
Court. Mr Baka was the Hungarian judge
on the European Court of Human Rights from 1991 to 2007, and was
elected President of the Supreme Court by the Hungarian Parliament
in June 2009. Mr Baka had not previously served a five-year term
as a judge in Hungary, and was therefore, despite his 17 years of
experience as a judge on the European Court of Human Rights, ineligible
for the post of President of the Curia. The widespread perception
that these legal provisions were adopted against a specific person
is strengthened by the fact that, in June 2011, the parliament adopted
a decision that suspended all appointment procedures for judges
until 1 January 2012, when Mr Baka’s would no longer be in office.
This despite the backlog in cases that is often mentioned by the
authorities as one of the underlying reasons for the reform of the
judiciary. As mentioned by the Venice Commission, generally formulated legal provisions
that are in reality directed against a specific person or persons
are contrary to the rule of law. In addition, the politically motivated
dismissal of the President of a Supreme Court could have a chilling
effect that could threaten the independence of the judiciary.

4.3.4. Action taken by
the Secretary General of the Council of Europe

115. Following the adoption of opinion CDL-AD(2012)001
by the Venice Commission on the Cardinal Acts on the judiciary,
the Secretary General of the Council of Europe, Mr Thorbjørn Jagland,
entered into talks with the Hungarian authorities on the manner
in which the Venice Commission’s opinion could be implemented. In
order to address the most urgent issues, Mr Jagland proposed that
the Hungarian authorities initially focus on three priority areas:

introducing
provisions that would subject the excessive discretionary powers
of the President of the NJO to judicial review;

revising the procedure for the appointment of the President
of the NJO in order to prevent the incumbent’s mandate from being
extended indefinitely by a small minority blocking the appointment
of a successor;

structural measures to strengthen the court system with
a view to ensuring that there is no longer a need to transfer cases
and to ensure that as long as the transfer of cases is necessary,
this will be done on the basis of objective legal principles and
with appropriate judicial oversight.

116. However, as emphasised by the Venice Commission: “It was clear
that the focus on these three priority areas would not mean that
other recommendations of the Venice Commission should not be implemented,
but that the three priority areas should be addressed as a matter
of urgency”.

117. As a result of consultations between the Secretary General
and the Hungarian Government, a package of amendments to the two
Cardinal Acts on the judiciary was tabled by the authorities. These
amendments were adopted on 2 July 2012. Given that these amendments
do not necessarily address all the issues raised by the Venice Commission
and the Secretary General, the Monitoring Committee decided, on
28 June 2012, to request an opinion of the Venice Commission on
these amendments and, in particular, on the question whether these
amendments addressed all the substantial concerns of the Venice
Commission regarding the Cardinal Acts on the judiciary, as voiced
in opinion CDL-AD(2012)001. This opinion was
subsequently adopted by the Venice Commission at its plenary meeting
on 12 and 13 October 2012.

118. The amendments have not changed the manner by which the President
of the NJO is appointed, or by which he or she can be dismissed.
The Hungarian authorities had furthermore promised to amend the
relevant legislation in order to clearly specify that the President
of the NJO would be holding this position for one single nine-year
term, non-renewable. An amendment to this effect submitted by the
Minister of Justice in March 2012 was however withdrawn on 18 June
2012. We hope that the Bill submitted to parliament on 29 March
2013 will finally deal with this problem.

119. Also, in the event that parliament fails to agree on a successor
with a two-thirds majority, the Vice-President will be appointed
interim President. However, the Vice-President is appointed by the
President of the NJO. We therefore concur with the Venice Commission
that it would have been preferable to give the National Judicial
Council the power to appoint an interim President.

120. The amendments to a large extent address the concerns regarding
the excessive concentration of discretionary powers in the hands
of the President of the NJO without the required accountability
and transparency.

121. The powers of the President of the NJO in the appointment
of new judges or court leaders are no longer discretionary. If the
NJO President wishes to deviate from the appointment or review board
he or she needs to have the consent of the NJC and can only do so
on the basis of criteria established by the latter. In addition, these
decisions can be appealed in a court of justice. These are important
improvements of the legislation. We were informed, however, that
the President of the NJO still has the power to annul a vacancy
notice for judicial appointment, even after candidates have submitted
their applications and been ranked by the NJC. This is clearly problematic.

122. The Cardinal Acts on the judiciary drastically curtailed the
role of the NJC, the body of judicial self-government in Hungary,
in the administration of the court system. The amendments to a large
extent addressed this shortcoming. The powers of the NJC have been
strengthened, including with respect to the appointment of judges
and the administration of the judiciary. However, it should be noted that
the NJC is still functionally dependent on the NJO and has a continuous
rotation system for its presidents, which weakens its capacity to
oversee and control the NJO and its President.

123. Court presidents and heads continuously monitor the administration
of justice in the courts under their responsibility, including on
compliance with rulings of higher courts and judgments, contrary
to theoretical issues and grounds. In its opinion CDL-AD(2012)001,
the Venice Commission considered that this continuous supervision
could have a chilling effect on the independence of the judges,
especially in the context of the uniformity procedure where the
Curia can publish obligatory decisions and authorities rulings that
are binding on the courts. Regrettably, this concern was not addressed
in the amendments to the Cardinal Acts on the judiciary.

124. In a positive change, as a result of the amendments, a judge
that needs to be transferred on a permanent basis has the opportunity
to choose between the available judicial posts at courts of the
same level. Only if the judge does not accept any of the posts offered
to him can the President of the NJO transfer the judge to a post of
his or her own choosing. In addition, this decision can now be appealed
in an administrative or labour court. It is important that the law
explicitly provides for the possibility of a full review on both
the procedure and the substance of the decision to transfer a judge
without his consent. The Cardinal Acts on the judiciary also allow for
the chair of a tribunal to “reassign judges without their consent
to a judicial position at another post on a temporary basis out
of service interests every three years for a maximum of a year”.
The Venice Commission has criticised this provision as overly broad
and excessive. This criticism was unfortunately not substantially addressed
in the amendments.

4.3.5. The transfer of
cases

125. A crucial area of concern was the excessively large
and discretionary powers given to the President of the NJO to transfer
cases from one court to another, based on the overly broad criterion
of “adjudicating cases within a reasonable period of time”. This
power was given a constitutional basis by its inclusion in the Transitional
Provisions to the Fundamental Law on 31 December 2011, but its duration
was limited “until a balance distribution of case-load has been
realised”. After the Constitutional Court annulled most of the provisions
of the Transitional Provisions, the power of the President of the
NJO to transfer cases has again been reintroduced through the fourth
amendment, but on a permanent basis.

126. The amendments to the cardinal acts only marginally address
the substantial criticism of the Venice Commission on this provision.
Following the amendments, the law now specifies that the transfer
of cases is an exception and that the NJC will determine the principles
that should be applied by the NJO President when appointing a preceding
court. However, the President is not bound by these principles.
In addition, the principles to be developed by the NJC only pertain
to the criteria for the selection of the preceding court and not
on the selection of cases that will be transferred. Similarly, the
judicial review is limited to the selection of the preceding court
and does not cover the selection of cases itself. In the case of
the selection of the preceding court, the legal overview is restricted
to compliance with legal provisions and not with the substantial
criteria for the selection of cases, as drawn up by the NJC. In
addition, the cardinal acts allow the President of the NJO to assign
a case to another court even if the Curia has annulled a previous
appointment decision in the same case.

127. If allowed at all, the transfer of cases should only take
place exceptionally and on the basis of clearly established and
objective criteria. Furthermore, the transfer of cases, both with
respect to the selection of cases as well as with respect to the
selection of the receiving court, should be open to legal review,
the conclusions of which should be binding on the President of the
NJO. The current possibilities for legal review, as introduced by
the amendments, are clearly deficient. We wish to highlight that
the transfer of cases does not solve the underlying structural under-capacity
of the courts in Budapest.

128. The Hungarian Parliament should introduce such a comprehensive
judicial overview on the transfer of cases without delay. The current
situation is at variance with the principle of a fair trial as provided
by Article 6 of the European Court of Human Rights. In addition,
we would like to highlight that, in its opinion on the amendments,
the Venice Commission emphasised that in general it “strongly disagrees
with the system of transfer of cases because it is not in compliance
with the principle of a lawful judge, which is an essential component
of the rule of law”.

129. The amendments to the cardinal acts regrettably do not address
the controversial lowering of the mandatory retirement age of judges
or the pre-term dismissal of the President of the Supreme Court
of Hungary.

130. The Cardinal Acts on the prosecution service establish a strong
and independent prosecution service. However, the cardinal acts
could be improved by establishing an equally strong system of checks
and balances, which is currently not sufficiently well developed
in the legislation. As with the Cardinal Acts on the judiciary,
a major concern is the fact that the Transitional Provisions give the Prosecutor General the right to allocate
a case to a different court than the court of general competence.
The possibility for a prosecutor to select the court where a case
will be heard is at variance with the principle of a fair trial,
as meant by Article 6 of the Convention. This possibility should
therefore be withdrawn from the Prosecutor General, even if he has never
made use of it until now.

131. This provision was struck down when the Constitutional Court
annulled most of the Transitional Provisions on 28 December 2012.
We note that the same provision was reintroduced in the fourth amendment (Article
15), tabled on 8 February 2013.

132. We welcome the fact that this provision was not adopted by
the parliament during its deliberations on the fourth amendment,
as the ruling coalition decided to withdraw the relevant draft article
15.

4.4. Media legislation

133. On 9 November 2010, the Hungarian Parliament adopted
Act CIV on “The Freedom of the Press and the Fundamental Rules on
Media Content” and on 30 December 2010 it adopted Act CLXXXV on
“Media Services and the Mass Media”. These Media Acts, which were
adopted after a long and charged adoption process, have a far-reaching
impact on the media landscape in Hungary. They attracted widespread
criticism both inside and outside Hungary, as they were seen as
undermining the independence of the media and limiting the right
to freedom of expression.

134. In response to the concerns that were expressed, Dunja Mijatovic,
the OSCE Representative on Freedom of the Media, commissioned an
independent legal assessment of the media law package. The conclusions
of this assessment were damning. According to the report, the Media
Acts established “a system for media content regulation (including
Internet- and ICT-delivered media content) going in its sweep and
reach beyond almost anything attempted in democratic countries and
beyond the limits of what is accepted in the international debate
as an appropriate and justified approach to regulating new communication
services, and on the other, as introducing – often in disregard
or violation of the needs of a democratic system of social communication
and of the letter and spirit of international standards – stricter
regulation, more pervasive controls and limitations on freedom of
expression”. Emphasising that the media package exceeded
“what is justified and necessary in a democratic society”, the report
recommended thoroughly reconsidering and amending this package of
legislation.

135. European Commissioner Kroes expressed her strong reservations
with regard to the media Acts and indicated that several provisions
in this law seemed to be non-compliant with EU law, in particular
the Audio-visual Media Directive, the Treaty on the Functioning
of the European Union on the freedom of establishment and the freedom
to provide services , as well as Article 11 of the European
Union Charter of Fundamental Rights. The European Parliament, on
10 March 2011, expressed its concerns with regard to the media legislation
and called upon the Hungarian authorities to fundamentally reconsider
and amend the media legislation package. On 9 February 2012,
the Commission indicated that it would consider starting Article
7 procedures if Hungary continued to flout EU law.

136. The then Council of Europe Human Rights Commissioner, Thomas
Hammarberg, also expressed his concerns about what he termed the
“corrosive cumulative impact” of the new media legislation on
the freedom of the media and freedom of expression in Hungary. His
report highlights his concerns with regard to, inter alia, the “politically unbalanced
regulatory machinery with disproportionate powers and lack of full
judicial supervision”, threats to the independence of the public
broadcasters, infringements of the rights of journalists to protect
sources, as well as attempts of a priori content regulation.

137. Responding to domestic and international criticism, a number
of amendments were introduced. These amendments limited the requirements
for balanced coverage to broadcast media only; specified that foreign broadcasters
could not be fined under the Hungarian media law for incitement
to hatred; clarified that on demand media providers only have to
register after they began offering media services; and clarified
the provision that media content may not “cause offence” in such
a manner that this is limited to discrimination or incitement to
hatred. While these amendments were welcomed as a positive step
in the right direction, they were seen as being insufficient to
address all the substantial shortcomings and concerns with regard
to the media laws. On 19 December 2011, the Constitutional Court
of Hungary issued a ruling in
which it declared unconstitutional the provisions which extended
the scope of the media law to the online and printed press as well
as the provisions that obliged broadcasters to provide the Media
Authority with any and all information it requested. In addition,
it ruled that the powers of the newly established Commissioner for
Media and Communications were unconstitutional as being an unjustified
restriction of the freedom of the press, and annulled the provisions
that would have obliged journalists to reveal their sources in legal
proceedings. The court gave the legislator until 31 May 2012 to
introduce amendments to the media legislation in line with the ruling
of the court.

138. On 11 May 2012, the Council of Europe Directorate General
for Human Rights and the Rule of Law published an expert assessment
of the Hungarian media legislation, including on the proposed amendments to
the media laws following the decision of the Constitutional Court.
EU Commissioner Kroes welcomed this expertise which confirmed the
concerns of the European Commission with regard to the media legislation
in Hungary.

139. The expertise emphasised that in order to be brought into
line with European democratic standards, any regulatory system for
the media should be capable of guaranteeing and, equally important,
be seen to be guaranteeing, the independence of this regulatory
system from political influence and control. The key to this independence
of the regulatory body is the manner in which it is appointed. However,
in the case of Hungary, the Council of Europe assessment established
that the process for appointments to the media regulatory bodies “do not ensure political independence
or neutrality”. In addition, it noted that existing safeguards in
the act were seriously undermined by the fact that the ruling coalition
holds a two-thirds constitutional majority in parliament. It therefore
recommended a thorough reformulation of the appointment process
to the media regulatory bodies.

140. The new media laws extend to the printed and online media
the obligation for media providers to register with the Media Council,
in addition to the usual linear broadcasting media. This obligation
caused considerable disquiet among, inter
alia, national and international media outlets as well
as international organisations. While licensing audio-visual media
that use scarce broadcasting frequencies is accepted under the European Convention
on Human Rights, the mandatory registration of print and online
media – beyond simple tax or business registration – is contrary
to the principles of proportionality established by the case law
of the European Court of Human Rights. This mandatory registration
of online and printed media was not annulled by the Hungarian Constitutional
Court decisions, and the amendments introduced by the Hungarian
authorities do not address the concerns expressed in this respect. We
therefore recommend that the requirement for printed and online
media to register with the Media Authority be abolished.

141. Of special concern for the Council of Europe experts are the
provisions in the media law that aim to establish government control
over both content and dissemination of information provided by media
outlets. The law establishes that a person has the right to receive
“proper” information on public affairs. Moreover, media providers
are obliged to provide “authentic”, “comprehensive”, “factual”,
“objective” and “balanced” information
about public affairs. These criteria are subjective and open to
interpretation, which leaves excessive discretion to the regulatory
authority. This in turn raises serious questions about the compatibility
of such provisions with the principle of freedom of expression as
guaranteed by Article 10 of the Convention. These provisions should
be completely revised in order to remove any ambiguity or discretion
on the part of the media authority in interpreting these clauses.
Moreover, any interference with regard to the content of news coverage
by broadcasters should be eliminated, with the exception of the
obligations for an impartial and balanced news provision by the
public broadcaster.

142. In the view of the Council of Europe experts, the regulation
of the public service media is another area of concern. Several
provisions in the media law, especially with regard to the appointment
and composition of the oversight bodies, undermine the independence
of the public broadcaster and open it to undue political influence.

143. Independent and impartial media regulatory authorities are
essential for the protection of the freedom of expression and the
exercise of free speech, as guaranteed in Article 10 of the Convention.
In this context the criticism and concerns raised by the Council
of Europe experts in relation to the regulatory framework for the media
in Hungary are very worrisome.

144. The National Media and Info-communications Authority consists
of several interrelated bodies, the most important of which are
the President of the Authority, the Media Council and the Office
of the Authority. The President of the Authority is directly appointed
by the Prime Minister, who has full discretion in this choice, for a
nine-year term. The vice-presidents of the authority
are in turn directly appointed, for an indefinite term, by the President
of the Authority. The Media Council is appointed by the parliament.
However, according to the media law, the President of the Authority
is the only candidate for the position of Chair of the Media Council.
If the parliament fails to elect the President as Chair of the Media
Council, he or she will still chair the Media Council, but in this
case without voting rights. All other members are appointed by the
parliament on the basis of nominations by a Nominations Committee
that is comprised of members of all factions in the parliament. Each
member on this committee has a weighted vote corresponding to the
numerical size of his or her faction in the parliament. The Nominations
Committee should strive to make its nominations on the basis of consensus,
but if it fails to do so, it can decide with a two-thirds majority
of the weighted votes. Under the current composition of the parliament,
this de facto guarantees full
control of the ruling majority over the Media Council. The appointment
mechanism of the Media Council and President of the Authority is
insufficient to guarantee the independence of the Media Authority
from political interests and control. This problem is compounded
by the integration of the licensing media oversight functions in
one single media authority – a unicum in Europe – and the automatic
designation of the President of the Authority as Chair of the Media Council.
It is strongly recommended that the licensing and media oversight
functions are split into two functionally separate and independent
bodies and that the appointment procedure for these bodies is reviewed so
as to ensure the de facto political
independence of its members.

145. In addition to these four crucial issues, the assessment raises
a number of other concerns about areas in the media legislation
that are at odds with European standards. The Hungarian Government
should comprehensively address the concerns outlined in the assessment
of the Council of Europe expertise if it does not wish to be seen
as falling short with regard to its responsibilities under Article
10 of the Convention.

146. In his letter to the Minister of Justice of Hungary of 29
November 2012, the Secretary General of the Council of Europe indicated
that further amendments to the Hungarian Media Acts were necessary
in order to guarantee the independence of the media. To that end,
he suggested separating the functions of President of the Media
Authority and Chair of the Media Council, to have these persons
elected by parliament and not appointed by the Prime Minister and
to limit the term of office to one mandate. In his response of 19
December 2012, the Minister of Justice informed the Secretary General
that the authorities accepted his suggestion to limit the term of
office of the President of the Media Authority to one mandate, but
rejected the proposal to separate the function of the chair of the
Media Council from the President of the Media Authority or to review the
appointment procedure for this post. The integral implementation
of the proposals of the Secretary General would have been an important
step towards ensuring the independence of the media regulatory bodies.
We therefore regret that his proposal was not fully implemented
by the authorities.

147. The Secretary General requested an assessment from the Council
of Europe media experts of the amendments proposed by the Hungarian
authorities. The experts welcomed as an improvement that the requirement
for news coverage to be “comprehensive, factual, up-to-date objective
and balanced”, was a change to the requirement that news coverage
should be balanced. The experts noted that the proposed changes
to the mandate of the President of the Media Authority do not affect
her mandate other than, if the amendments are adopted, limit her
term of office to a single mandate. In addition, the functions of
the Chair of the Media Council and President of the Media Authority
have not been separated, contrary to previous recommendations of
the expert group and the Secretary General. The assessment questions
whether the proposed appointment mechanism can completely avoid
the possibility of political appointments and recommends that the
mandates of the members of the Media Council should be limited to
one term. The experts express their hope that these amendments will
be followed by subsequent steps to bring the rest of the media legislation
into line with European standards.

148. We were informed subsequently to our visit in February 2013
that, on 25 March, parliament had adopted amendments to the media
laws: according to these amendments, the Head of the Media Authority
will be appointed by the President of Hungary upon proposal of the
Prime Minister and his/her mandate will expire after nine years,
without any possibility of renewal.

5. Other cardinal
Laws

5.1. Cardinal Act CXII
of 2011 on Informational Self-determination and Freedom of Information

149. Cardinal Act CXII of 2011 on Informational Self-determination
and Freedom of Information was adopted by the Hungarian Parliament
on 26 July 2011. The draft for this act was proposed by the government
and was therefore subject to the mandatory social consultation process.
It replaces Act LXIII of 1992 on the Protection of Personal Data.
This cardinal act, as was the case of the previous bill, regulates
in one single act the two informational rights: the right to protection
of personal data and the right to freedom of access to information. This
approach, which is relatively unique in Europe, allows for a comprehensive
and coherent approach to the regulation of these two issues. At
the same time, these two concepts may occasionally be in conflict
with each other, which may give rise to application and interpretation
problems.

150. Under the previous law, the oversight of the implementation
of, and adherence to, the principles of data protection and freedom
of information was exercised by an Ombudsperson for data protection
and freedom of information, who was elected by the parliament for
a period of five years. The new act abolished this post of ombudsman
and replaced it with a National Authority for Data Protection and
Freedom of Information. This was heavily criticised by domestic
and international actors, who expressed their concern that the law
and new authority were diminishing the independence of the oversight
structure that was already in place. Following this
criticism, which culminated in the launch of infringement proceedings
by the European Union in January 2012, the act was amended several
times to address the concerns expressed.

151. At the request of the Monitoring Committee, the Venice Commission
prepared an opinion on Cardinal Act CXII of 2012, as amended, before
it came into force on 1 June 2012. The opinion of
the Venice Commission was adopted at its plenary session on 12 and
13 October 2012.

152. The amendments to the law secured the independence of the
oversight body to a considerable extent. The
act establishes that tasks can only be given to the authority by
a law. In addition, it has given the authority budgetary autonomy.
The law now provides clear criteria for the dismissal of the President
of the Authority and for the possibility to appeal any dismissal
proceedings before the courts. Moreover, strict conditions and incompatibilities
are introduced for the position of the President.

153. From the perspective of guaranteeing the independence of the
National Authority for Data Protection and Freedom of Information,
the appointment procedure of its President remains of concern. The
President of the Authority is appointed for a nine-year term by
the President of the Republic upon nomination by the Prime Minister.
Parliament is thus completely excluded from the nomination procedure.
This potentially undermines the independence of the President of
the Authority, given the fact that the Prime Minister and President
in most cases will belong to the same party and the ruling majority.

154. In its opinion, the Venice Commission concludes that Act CXII
of 2011 on informational self-determination and freedom of information
is, as a whole “complying with applicable European and international standards”.

5.2. Cardinal Act CCVI
of 2011 on the Right to Freedom of Conscience and Religion and the
Legal Status of Churches, Denominations and Religious Communities

155. Cardinal Act CCVI replaced Cardinal Act C on the
freedom of religion and status of churches. The old act, which is
nearly identical to the new one, was adopted on 11 July 2011. However,
at the end of 2011, it was leaked to the press that the Constitutional
Court would invalidate this Act on procedural grounds. In reaction, on
19 December 2011, the parliament withdrew Act C of 2011 just
before it was invalidated by the Constitutional Court. A new draft was introduced
in parliament on 23 December 2011 as a private member’s bill and
adopted on 30 December 2011. It came into force already on 1 January
2012. In order to prevent the Constitutional Court from annulling
it on substantial grounds, the Church Law was given a constitutional
basis through a reference made to it in the Transitional Provisions
adopted on 31 December 2011.

156. On 20 January 2012, the Hungarian authorities requested the
Venice Commission’s opinion on this act. This opinion, CDL-AD(2012)004,
was adopted by the Venice Commission at its 90th plenary session
on 16 and 17 March 2012.

157. The previous law on the freedom of religion and status
of churches, which dated from 1990, contained very liberal conditions
for the registration of a church. As a result,
over 300 organisations were registered as a church by the end of
2011. Reportedly, several of these organisations registered as a
church only to benefit from tax and economic benefits, rather than
to pursue religious activities. It is therefore understandable that
the authorities wished to address this abuse of the overly inclusive
registration process. However, concerns have been raised over a
number of retroactive and discriminatory provisions, as well as
over the new registration process and criteria to be used.

158. As mentioned in the Venice Commission’s opinion, this act
provides a liberal and adequate legal framework for the protection
of the right to freedom of religion and beliefs. However, on a number
of important issues, the law falls short of international standards.

159. A key concern with regard to this cardinal act is the provision
that a “Church, denomination or religious community (hereafter referred
to as “church”) shall be an autonomous organisation recognisedby the National Assembly”. According to international
standards, freedom of religion includes the right to enjoy this
religion in community with others and without the need for a formal
recognition by a State authority. The obligation to obtain recognition
by the Hungarian Parliament as a condition to register a church
is therefore considered to be a restriction of the principle of
freedom of religion.

160. While it is legitimate to demand registration of a church
for it to obtain certain privileges and economic benefits from the
State, the case law of the European Court of Human Rights has clearly
established that the State should be strictly neutral in granting
such recognition. The decision to grant, or refuse, registration
should therefore be based on clearly established impartial criteria.
In addition, such decisions should be well reasoned and demonstrate
that there are proper grounds for denying a request for recognition.

161. In light of the above, the fact that, according to this act,
churches have to be recognised by the Hungarian Parliament with
a two-thirds majority vote is highly problematic. Even though the
law contains a set of recognition criteria – some of which are problematic
and will be discussed below – the parliament is sovereign in its
decision-making. Its motives for a decision are not public and do
not have to be reasoned. The recognition procedure is therefore
not only opaque, it is also arbitrary, as it depends on the political
preferences of the required two-thirds majority in the parliament.
In this respect, the Venice Commission raises the issue of legal security
and continuity, which could be undermined as the composition of
the parliament is likely to vary over time, which could result in
changing de facto standards
for registration and de-registration of churches.

162. The parliament takes its decision on the registration of a
church by a two-thirds majority. A decision to register takes the
form of a law which is annexed to Act CCVI of 2011. A decision not
to register a church takes the form of a resolution. These resolutions
cannot be reviewed by a court, therefore appeal and redress against a
decision not to grant registration, are not possible. In addition, religious communities
that are refused registration as a church cannot make a new request
for recognition for a one-year period after the registration request
was denied.

163. On 29 February 2012, the parliament adopted a bill that recognised
a total of 27 churches. However, it
is not clear on which grounds and criteria the parliament made its
decision to recognise these communities. This highlights the lack
of transparency of the entire registration process.

164. The registration process for churches clearly falls short
of European standards and norms. In order to comply with European
standards, we recommend that registration be either done by the
courts or by the Ministry of the Interior/Justice, on the basis
of clear and impartial legally established criteria. A decision
not to grant recognition should be appealable in court. The comments
and reservations voiced by the Venice Commission in its opinion
on this law should be fully addressed.

165. Several of the criteria for recognition that are mentioned
in the cardinal act are problematic. According to these criteria,
any religious community wishing to be registered as a church should
have existed for at least 20 years in Hungary or at least 100 years
internationally. The Venice Commission guidelines stipulate that
it “is not appropriate to require lengthy existence in the State
before registration is permitted”. Also, the European Court of Human Rights
has struck down lengthy existence requirements for the registration
of churches. In the case of Kimlya and
Others v. Russia, the
Court ruled that a 15-year existence requirement was excessive.
It is therefore clear that the 20 years’ existence required by the
Act on freedom of religion runs counter to established case law
of the European Court of Human Rights.

166. The Act allows for a request for registration to be denied
on the grounds of national security. As mentioned by the Venice
Commission, national security is not a legitimate
restriction on the freedom of religion or beliefs under the European
Convention on Human Rights. This provision should be removed from the
law.

167. Another crucial area of concern in the Cardinal Act on freedom
of religion was the deregistration of churches when the new act
was adopted. All, except the 14 churches mentioned in the original
law, were required to reapply for registration as a church. This
deregistration process is discriminatory, raises questions about
retroactive application of provisions in the law, as well as of
legal continuity and raises concerns with regard to the case law
of the Court. The deregistration process should be considered as
a limitation of the freedom of religion that can only be justified
under narrow international legal standards. It should be underscored that the Venice
Commission guidelines for laws affecting religious beliefs explicitly
state that “provisions that operate retroactively or fail to protect
vested interests (for example by requiring reregistration of religious
entities under new criteria) cannot but be questioned”.

168. On 12 August 2012, the Hungarian Ombudsman, Máté Szabó, asked
the Constitutional Court to overturn the Cardinal Act on freedom
of religion on the grounds that it violated the separation between
Church and State. In his view, the requirement that churches need
to be recognised by parliament violates the separation between church
and State, as well as the principle of fair procedure, and lacks
legal remedy. On 28 December 2012, the Constitutional Court annulled
the provisions in the Transitional Provisions that gave the parliament
the power to decide on the registration of churches as well as the
criteria on which such decisions would be based, and on 26 February
2013, it annulled on substance a number of provisions of the Cardinal
Act on churches. However, the ruling majority re-entered the same
provisions via the fourth amendment adopted on 11 March 2013. Registration
of churches by parliament will thus continue.

5.3. Cardinal Act CLXXIX
of 2012 on the Rights of Nationalities

169. Cardinal Act CLXXIX if 2011 on the Rights of National
Minorities was adopted on 19 December 2011. The draft for this act
was proposed by the government. It was therefore subject to the
mandatory social consultation process. We welcome that this act
was drafted by the government and that a social consultation process
took place on such a potentially sensitive subject as minority rights.
This clearly has benefited the quality of the act. At the request
of the Monitoring Committee, the Venice Commission prepared an opinion on
this law which was adopted during its 91st plenary session on 15
and 16 June 2012.

170. According to the 2001 census, approximately 4.34% of the population
identifies itself as belonging to a national or ethnic minority.
The law on minorities of 1993, which was in place before the adoption
of Cardinal Act CLXXIX of 2011, was considered to be a very progressive
law. However, the provisions that regulated minority self-government
elections were widely seen as open to abuse.

171. A major change introduced by the new law is the move from
the concept of ethnic and national minorities towards the concept
of nationalities. According to the opinion of the Venice Commission ,
the new act confirms Hungary’s commitment to the protection of its
minorities, in line with international standards and norms. The
act provides comprehensive protection mechanisms for both individual
and collective minority rights. However, the law is complex and
excessively detailed. The latter is of some concern given the fact
that this act has cardinal status and therefore can only be changed
by a two-thirds majority. As we mentioned in our general assessment
of the constitutional framework, such a level of detail should be
left to ordinary laws in order to ensure the required flexibility
for day-to-day policy making.

172. The law consolidates and strengthens the area of minority
self-government, especially with regard to the elections for minority
self-government, which was an area much criticised in the previous
legislation. In this respect, the Fundamental Law of Hungary of
2011 stipulates
that nationalities shall participate in the work of the parliament,
which shall be regulated by a cardinal act. This provision is regulated
in the Cardinal Act on the Election of Members of the Parliament,
which we will discuss below.

5.4. Cardinal Act CXI
of 2011 on the Protection of Families

173. The Cardinal Act CXI of 2011 on the Protection of
Families was adopted on 23 December 2011. It was introduced as a
private members’ bill on 2 December 2011 and therefore not subject
to the social consultation procedure that would have taken place
if this bill had been proposed by the government. This is of concern given
the sensitive subject matter that this act deals with, as well as
the controversy created by its strong position on a number of moral
and value-based issues.

174. The Monitoring Committee asked the Venice Commission to provide
an opinion on the Cardinal Act on the Protection of Families. Regrettably,
on 20 April 2012, the Venice Commission declined this request on
the ground that it did not have the required expertise in the field
of private law.

175. The Act on the Protection of Families takes strong and often
controversial positions on moral and value- based issues. While
this opinion is not the place to discuss the merits of such positions,
we would like to emphasise that, in its opinion on the constitution,
the Venice Commission rightfully stressed that “cultural, religious,
moral, socio-economic and financial policies should not be cemented
in a cardinal law”, but left to the normal political
process and decided upon by simple majority. This reservation is
equally valid for this act on the protection of families.

176. The Act on the Protection of Families introduces a very restrictive
definition of family. According to the cardinal law, this definition
is to be used in all other legislation, regardless of purpose. However,
the definition seems to be inconsistent with lower-level legislation.
Without wanting to enter into a discussion on the merits of this
definition, we are concerned that such a restrictive interpretation
could lead to discriminatory legislation at the lower level and
therefore be at odds with international human rights law and with
Hungary’s obligations to the Council of Europe.

177. The Cardinal Act on the Protection of Families contains a
provision that obliges media providers to accord respect to the
institution of marriage and the value of family and parenting. As
mentioned in the Council of Europe expert opinion on the media laws,
a narrow interpretation of this provision would “not only violate freedom
of expression under Article 10 of the Convention, but will also
interfere with the right of freedom of conscience protected by Article
9 [of the Convention]”. The opinion therefore recommends
that this provision be removed from the cardinal act. We fully support
this recommendation.

178. The Ombudsman of Hungary requested a ruling of the Constitutional
Court on the constitutionality of the Act on Family Protection.
On 20 December 2012, the Constitutional Court of Hungary ruled that
the definition of family was too restrictive and that the provisions
contained in this act dealing with inheritance were unconstitutional
as they were not in conformity with the Civil Code of Hungary (which
provides for equality between marriage and civil partnerships).
In the view of the Constitutional Court, this violated the principle
of legal certainty that is guaranteed by the Hungarian Constitution.
This ruling gives credence to our concerns about the inconsistency
of this cardinal act with lower-level legislation, as well as Hungary’s
international human rights obligations.

179. We note with concern that the fourth amendment to the Fundamental
Law reintroduced this very restrictive definition of the family
on 11 March 2013.

6. Conclusions

180. This report has outlined a number of worrisome developments
and serious concerns with regard to the constitutional reform process
in Hungary. These concerns are mirrored by those we encountered
in relation to the reform of the media legislation. We will therefore
deal with these issues together in our conclusions.

181. The manner in which the constitution and cardinal acts were
adopted was opaque, disrespected proper democratic procedure and
was not based on wide consensus between, and consultation with,
the widest possible range of political forces in Hungarian society.
This adoption process undermines the democratic legitimacy of the
new Fundamental Law. In addition, the constitution and cardinal
acts contain several provisions and declarations that are based
on moral and ethical norms that are controversial and contentious in
Hungarian society. Without wishing to enter into a debate on these
declarations and provisions, we wish to underscore that a constitutional
framework should avoid codifying values and norms that are controversial
and about which justifiably different opinions and concepts exist
within a society.

182. The old constitution was changed 12 times by the current ruling
coalition. Transitional provisions adopted just before entry into
force of the new Fundamental Law considerably amended or supplemented
it. In addition, the new Fundamental Law has already been amended
four times, the last time inter alia to reintroduce
transitional provisions that were struck down by the Constitutional
Court. The constant changing of the constitutional framework has
turned it into an instrument of political power instead of a framework
for the organisation of State and government. This has further undermined
the democratic legitimacy of the new constitutional framework.

183. The Constitutional framework is based on an excessive use
of – overly detailed – cardinal acts and cardinal provisions in
normal acts which need a qualified two-third majority to be adopted
or changed. This excessive use of cardinal laws and provisions can
only be interpreted as an attempt by the ruling majority to cement
its policy preferences in the constitutional framework of the country.
This in turn allows the current ruling majority to define the national
policy far beyond the term of mandate that they were given by the Hungarian
electorate.

184. This wish to exert control over the Hungarian society far
beyond its democratic mandate is also clear from the sheer number
of institutions and regulatory bodies that were either newly established
or thoroughly reformed by the ruling majority. This, by using its
two-thirds majority in parliament, allowed the ruling majority to
bring these bodies firmly under its political control. The long
mandates and the realistic possibility that parliament will not
be able, in the future, to appoint with the required two-third majority,
the successors for the leadership positions in these bodies, will
allow the current ruling majority to exert de
facto control over, inter alia,
the media regulator, the central bank, the budgetary council, the
judiciary, the ombudsman, after its current mandate has ended, as
well as the Constitutional Court.

185. This cementing of policy preferences in the constitutional
framework and political control over nominally independent institutions
and regulatory bodies will render future elections meaningless,
as a new government will be unable to change the legislation adopted
by its predecessor in a large number of areas, unless it also musters
a two-third majority. This is a potential source of systemic political
and constitutional instability. Any party or party coalition with
more than one third of the votes in parliament will have a de facto veto over the national
policy and negotiations to change and adopt policies will therefore
in all likelihood be long and protracted.

186. The new constitutional framework has seriously eroded the
system of democratic checks and balances in Hungary. Power has been
excessively concentrated and excessive discretion in decision-making
given to a number of key positions within crucial regulatory or
oversight bodies. At the same time, the accountability of these
persons has diminished, as has the possibility for appeal and legal
overview of their decisions, which in many cases are now limited
to procedural aspects only.

187. Nowhere is the erosion of the system of checks and balances
more clear than in the systematic curtailing of the powers and competences
of the Constitutional Court. The Constitutional Court has an important
counter-balancing and moderating role in the legal-political system
in Hungary, especially in the context of its unicameral political
system. Therefore, the curtailing of its powers and competences
has a direct and negative impact on the democratic functioning of
the political system in the country. In addition, in any State governed by
the rule of law, it is of fundamental importance to abide by the
judgments of the highest court of the land. In this respect, the
fact that the ruling coalition on several occasions misused its
two-thirds majority to reintroduce provisions that the Constitutional
Court had previously ruled as unconstitutional, is of serious concern.

188. In this respect, we would like to underscore that the main
justifications for a qualified two-thirds majority in constitutional
matters is to protect the constitutional framework from frivolous
changes by a ruling party for narrow partisan self-interest and
to ensure that the constitution is adopted or amended only on the
basis of an as wide a consensus as possible between all political
forces over the legal and democratic foundations of the State. The
willingness of the current ruling coalition to use its unique qualified
majority – especially given that this constitutional majority is
based on only slightly less than 53% of the popular vote – in contravention
of these principles in order to impose its will and to circumvent
Constitutional Court rulings, raises questions with regard to the
respect for democratic principles and the rule of law. Similarly,
the boycotting of the deliberations and voting on the new constitutional
framework by the opposition raises questions about the political
and democratic culture in the current parliament.

189. The opinions of the Venice Commission that were prepared on
the Fundamental Law and several cardinal acts, as well as other
reputable expert assessments and domestic and international court
decisions outlined in this opinion, have shown that the new constitutional
framework is, in several aspects, at variance or contradicts European
standards – including the European Convention on Human Rights –
as well as case law of the European Court of Human Rights and European
Union law. This is, for example, the case with regard to cardinal
legislation regarding elections, the judiciary, the recognition
of churches, as well as family and social affairs. In addition,
Constitutional Court judgments have indicated that some of these
acts violate the Hungarian Fundamental Law and constitutional guarantees
as well.

190. We recognise that over the last two years a number of amendments
have been made to the legislation that, to some extent, have addressed
a number of domestic and international concerns. However, it should
be noted that these changes were made under strong and concerted
international pressure, including the threat of sanctions, and that,
in most cases, the fundamental concerns and criticisms were decidedly
left unaddressed by the authorities.

191. This raises questions with regard to the willingness to abide
by European standards, as well as democratic principles and the
rule of law. In our view, the lack of willingness of the current
authorities to abide by these crucial principles was made clear
with the adoption of the so-called fourth amendment to the constitution.
This amendment was adopted against the recommendations of many international
and national experts and personalities, as well as against the explicit
advice of Hungary’s European partners. The fact that this amendment
knowingly reintroduces several provisions that had previously been
ruled as unconstitutional, or deemed incompatible with European
standards and the case law of the European Court of Human Rights, is
in our view unacceptable and incompatible with Hungary’s obligations
as a member of the Council of Europe.

192. We believe that each of the concerns outlined in this opinion
is inherently serious in terms of democracy, rule of law and respect
for human rights. Taken separately, they would already warrant close
scrutiny by the Assembly. In the instant case, however, what is
striking is the sheer accumulation of reforms that aim to establish
political control of most key institutions while in parallel purposefully
weakening the system of checks and balances, including by bypassing
and eviscerating the Constitutional Court.

193. As a member of the Council of Europe, Hungary is obliged to
uphold the highest possible standards in relation to the functioning
of its democratic institutions, the protection of human rights and
respect for the rule of law. These are obligations Hungary voluntarily
committed itself to when it acceded to the Council of Europe. The
developments described in this opinion raise serious and sustained
concerns about the extent to which the country is still complying
with, and the willingness of the authorities to live up to, these
fundamental principles. Therefore, we see no other possibility than
to recommend the opening of a monitoring procedure in respect of
Hungary until the concerns outlined in this opinion have been satisfactorily
addressed in the view of the Assembly.